[00:00:00] Speaker ?:
Okay.

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Case number 14-1286, Canyon Fuel Company LLC at L Petitioners versus Mine Safety and Health Administration and Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health.

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Case number 14-1285, Rosebud Mining Company at L Petitioners versus Mine Safety and Health Administration and Joseph A. Main, Assistant Secretary of Labor for Mine Safety and Health.

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Mr. Moore for the petitioners, Ms.

[00:00:28] Speaker 00:
Dunbar for the respondents.

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Mr. Moore, good morning.

[00:00:31] Speaker 01:
Good morning.

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May it please the court?

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These cases come to the court after having a somewhat synergistic course of litigation.

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Rosebud was litigated first.

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They started out with denials of the petitions.

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The ALJ granted them.

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It went up to the assistant secretary, who continued to grant them but added additional conditions.

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And it was remanded to clarify the record on a couple of issues.

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Canyon Fuel waited for the first Assistant Secretary decision in Rosebud and litigated it on the very limited issues of whether or not certain conditions would be imposed in a grant of the petition.

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They involved the issue of electronic surveying instruments.

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which are not anything exotic, so we're all clear.

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An electronic surveying instrument is an instrument that you see out on the roadside in construction sites.

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It has been in common in the mining industry and in general industry since approximately 1985.

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It is the standard of the industry.

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And it is 10 times more accurate than old mechanical surveying instruments.

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Am I right that there are non-permissible, well, I know there are non-permissible electronic, but also permissible?

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There are no permissible electronic surveying instruments.

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All right.

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So we're just dealing with all of them are non-permissible then?

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Right.

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OK.

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Back in the early 1980s, there was an approved, I believe, distance meeting.

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It was a data logger of something of that nature that was approved.

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And then Mr. Ryder, our expert, managed to dig one up.

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Didn't see any significant differences except more caulking around the outside.

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But there is no approved permissible surveying equipment.

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Having said that, they are, in fact, they are different than other mining equipment.

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Permissibility applies to everything used in the three locations that we're talking about, and that includes continuous miners, roof boulders, shuttle cars.

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And there's a significant difference, because if you're using a continuous miner, it's up at the face, it's digging, it's encountering rock,

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It is subject to a fair amount of abuse because it's out beyond supported roof when it's initially mining.

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Same with roof boulders.

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They are bolting unsupported roof.

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The assistant secretary in this case rejected the findings of the judges.

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It's not one, but it's two judges, and actually engaged in fact-finding credibility determinations on his own.

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So under our precedent,

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Isn't the standard of review settled?

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Under your precedent, the standard of review is settled.

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The question is whether or not he can engage in the sort of credibility findings that he did.

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The K case in this circuit says he can.

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However, if you look at the

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Other cases that we've cited in our reply brief, the real question becomes, how do you view that?

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And we all know that historically, you accept the finders of facts credibility determinations because they listen to the witnesses and they saw the witnesses.

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And in this particular case, that's particularly significant because we have two different judges.

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who listened to essentially the same expert witnesses and made a determination as to their credibility.

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So it's a de novo review and we have to find whether there was substantial evidence.

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You have to find whether substantial evidence supports the assistant secretary's decision.

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And I would submit that the fact that he went contrary to the ALJ's findings would suggest that his findings should be viewed with some reservation, if not skepticism.

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That's an interesting standard.

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Would you agree that the fact that there is evidence contrary

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to his finding does not mean there is not substantial evidence.

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Sorry for the double meaning.

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Well, we would submit that the evidence he relied on is generalized evidence that does not mean to substantial evidence test when placed up against specific evidence.

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For example, let's take the issue of dust inside an electronic surveying instrument.

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He rejected both Mr. Ryder's tests, Mr. Ryder's testimony on examining the insides of instruments and a discussion of sealing and the use of the IP 66 standard, and he relied on Mr. Huntley.

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What Mr. Huntley testified to was

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that when they test for permissibility, they layer coal dust on the electric components and see if it will ignite.

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Mr. Huntley did not testify as to the potential for layering, actual layering, and the likelihood of that.

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We are talking, I would submit, and I think.

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In the likelihood of what?

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Just so I'm clear.

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One, float coal dust getting inside the instrument in the first place.

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And second, float coal dust igniting if it layers on the electronics on the inside.

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No question that when the mine is operating, the dust can layer.

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Is that not correct?

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Well.

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Based on this record?

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not on the inside of instruments.

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You can get some dust into the instruments.

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Right.

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But that doesn't mean it will layer as we spoke.

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And frankly, Mr. Huntley, who the Assistant Secretary relied on, who's obviously his subordinate, didn't do any tests to see if these components would ignite, I think.

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He rejected, for example also, the fact that there are thermal resistors in this, and that means it shuts down at a certain temperature.

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He said, well, they could malfunction.

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Well, okay, you can make that argument on every type of equipment, be it, and it simply is not, we believe, substantial evidence to suppose that they won't work.

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when we all know that thermal resistors from around, for example, my cell phone in my pocket shuts down at a certain temperature because it's too hot.

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Also shuts down when it's too cold.

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Well, that's the same sort of technology we're talking about here.

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So I guess what I'm trying to understand in your argument in part is given the MINE Act,

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and Congress's determination to place primary emphasis on the safety and health of the minor.

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Why is not the fact that, as you admit, dust could get into these instruments and that they are not

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shown to be fail-safe, or we can even ignore the fail-safe one, sufficient to support a finding here.

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I mean, you say they were generalized findings.

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Yes, generalized testimony.

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Generalized testimony.

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And he was relying on that, yes.

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But given the emphasis of the Mine Act, why isn't that appropriate evidence on which to rely?

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Well, I think you have to look at the whole test.

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and that all you're trying to do is provide the equal measure of protection, which you have done, and he listed a whole bunch of redundant protections.

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You've replaced one redundant, one protection with a number of others, a whole laundry list of protections, and that we submit is sufficient.

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We also would submit that... So did he not find that

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The ammunition of protection was not fully replaced by what was being proposed?

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That's what he found, but we don't believe that's supported on this record.

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I see.

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We also think he ignored, for example, the whole issue of ventilation and, of course,

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We have a ventilation requirement in here, and she's supposed to check to make sure the ventilation is up to what it's supposed to be on the section.

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Well, there was a reference to all the violations that had been issued for not maintaining the ventilation system properly.

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There have been violations issued.

[00:10:26] Speaker 01:
That does not mean that what we're talking about, if you go on that premise, Your Honor, then you also need to look at the violations for permissible equipment, which is, and I cannot quote you where they are on the most frequently cited standards, it's on IMCHA's website, but it's in the top 10.

[00:10:50] Speaker 01:
And if you go with that theory, well, I don't think you can base your decision on the fact there may be violations.

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Nor do I think you can base your decisions, as he did, on the fact that methane detectors may malfunction.

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These are the methane detectors the Secretary has approved and are used throughout the industry.

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day after day, shift after shift, hour after hour.

[00:11:20] Speaker 01:
And yet he says, oh, there may be a delay in them.

[00:11:22] Speaker 01:
Well, if there's a delay in them in terms of somebody using them in conjunction with surveying, there's certainly a delay in them when you're using them to test at the face where you're actually going to get methane if you're going to get.

[00:11:35] Speaker 01:
The fact that he just simply wrote off ventilation

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Also, I think the Dugout Canyon mine is probably the best example of why his requiring cessation of production is not supportable.

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Dugout Canyon mines 10 to 12 entries at a time.

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And what you do is you recycle from face to face.

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They have a provision in their ventilation plant, which is approved and required by MSHA.

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that they cannot do anything downwind of the continuous miner.

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That's roof bolt, cleanup, anything like that.

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So if they're going to use electronic surveying equipment, that applies also.

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The electronic surveying equipment will always be in what is known as another split of air, because the air comes up to the section in the middle entries and splits.

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Some goes to the left-hand side, some goes to the right-hand side.

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If they were mining on the left-hand side, you're going to be on the right-hand side.

[00:12:33] Speaker 01:
Well, the assistant secretary didn't consider those sorts of things.

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He rejected, for example, some of the canyon fuel mines she used ventilation to.

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It's an advance.

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And what happens is the air, as is coming off the face where you were mining, goes into a tube and is conveyed out of the section.

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What that means is if I'm standing in any entry, I'm in fresh air, even if I'm in by the last open cross cut.

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And that is a significant fact.

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Is the phrase in by just means it's just if you're in it or you're by it?

[00:13:26] Speaker 01:
It's a directional phrase that we've wrestled with throughout my career.

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What it means is if I'm standing here and the working faces are where the wall behind you all are, those faces are in by where I am.

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What it means in terms of the last open crosscut, the last open crosscut, as we described,

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You mine a series of entries, as few as two, as many as 10 to 12, going into the mine.

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And you drive crosscuts between them so they're all connected.

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It's a grid like that.

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The last open crosscut starts at the out by rib or the out by the edge of the pillar going toward the face in that last open crosscut.

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It's a crosscut that doesn't have a permanent stopping in it that

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equipment travels in, and the air is brought up, and it travels through that crosscut to the face, depending on which face you're on.

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So it's only a locational term, not a directional term.

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Right.

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All right.

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Right.

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Well, it's a directional in that if I'm standing here and the wall is in face, it's in by, and the back door is out by.

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But it is a term of art in the industry, which we've all wrestled with.

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The assistant secretary, both in his requirement to cease production and his requirement with respect to float coal dust, for example, failed to consider some significant facts.

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that I think make his decision arbitrary.

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First of all, he failed to consider that for float coal dust to actually be explosive, it has to be at a certain level, which is 25,000 times the level permitted for respirable coal dust in the face areas.

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Respirable coal dust has a 2 milligrams per cubic meter standard.

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Quoke coal dust to be explosive has to be 25,000 times that.

[00:15:42] Speaker 01:
But that's not all what he failed to consider.

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He failed to consider the fact that this is an optical instrument.

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I'm standing there with an electronic surveying device.

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And I walk through the lens.

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And I'm generally looking anywhere from 100 to 300 feet

[00:16:07] Speaker 01:
straight ahead to somebody who's holding a plumb bob attached to the roof so it hangs down straight.

[00:16:16] Speaker 01:
And I've got to see that string.

[00:16:21] Speaker 01:
Well, it doesn't take much dust to actually obscure that.

[00:16:28] Speaker 01:
Further, I am measuring to that string

[00:16:32] Speaker 01:
using the device and it's a laser that sends it to the string and bounces it back.

[00:16:42] Speaker 01:
Well, if you have any dust in the air, it doesn't take much to get to the point where you can't survey accurately and you would have to stop.

[00:16:54] Speaker 01:
And that's way short of any explosive load.

[00:16:59] Speaker 02:
Are you relying at all on the fact that Rosebud for 20 years used this electronic equipment and has never been cited for it?

[00:17:12] Speaker 01:
Well, yes and no, Your Honor, because Rosebud wasn't alone, but Judge Lesniak thought that was very significant.

[00:17:23] Speaker 01:
It's interesting that the only person that MSHA put on who is at all familiar with electronic surveying, Mr. Carmelino, had been a surveyor before he went to MSHA and had used electronic equipment without any problems.

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I recognize that

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the case law as you can.

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If they were to write a violation, you couldn't argue why you permitted it.

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But the judge was looking at, well, people didn't think this was a significant issue, and then it became a significant issue.

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And finally, before I cut into too much of my rebuttal time, I also say that what he didn't consider in any significant way is the fact that electronic surveying instruments are more accurate and safer, and they're more efficient.

[00:18:12] Speaker 01:
they are 10 times more accurate.

[00:18:15] Speaker 01:
And that is significant, because you not only are mining in mines like Rosebud, you have old abandoned mines that you are trying to avoid, because they may be full of water, or what's known as black dam, which is just low oxygen.

[00:18:34] Speaker 01:
You are avoiding lakes, rivers, and the like.

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The more accurate it is, the better.

[00:18:41] Speaker 01:
And there was testimony from Mr. Hartzog, who's been surveying his entire career, that it is more efficient to survey with electronic surveying equipment.

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You are spending less time on a section.

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And the Assistant Secretary made a point of saying, well, if you are surveying your production, you have to worry about equipment.

[00:19:06] Speaker 01:
That's true if you're using mechanical surveying equipment, and since it takes longer to survey, it is.

[00:19:14] Speaker 01:
For that reason, it's an argument that frankly I don't think should carry any weight.

[00:19:20] Speaker 01:
I'm into my rebuttal time, so if there are no more questions.

[00:19:22] Speaker 01:
All right.

[00:19:23] Speaker 01:
Thank you.

[00:19:25] Speaker 02:
Ms.

[00:19:25] Speaker 02:
Dunbar.

[00:19:38] Speaker 04:
Thank you, Your Honors.

[00:19:39] Speaker 04:
Good morning.

[00:19:40] Speaker 04:
May it please the court?

[00:19:41] Speaker 04:
My name is Lynn Dunbar, and I represent the Secretary of Labor, by way of his delegated authority, to the Assistant Secretary of Labor for Mine Safety and Health, whose decisions are before us today.

[00:19:52] Speaker 04:
I also represent the Mine Safety and Health Administration, otherwise known as MSHA.

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With me at council table is Mr. Chris Schuman.

[00:20:00] Speaker 04:
He is the appellate counsel in our office.

[00:20:03] Speaker 04:
I'd like to start with a, begin with a brief overview of the permissibility standards, if you'd like.

[00:20:08] Speaker 04:
Just three or four sentences.

[00:20:11] Speaker 04:
I just want to point out that the Mine Act and EMSA's mandatory safety standards require multiple safety measures to protect against fires, ignitions, and explosions.

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Because the operator's alternative method eliminates EMSA's permissibility standards for electronic surveying equipment, the Assistant Secretary's conditions are necessary to offset that loss of protection.

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The goal of the permissibility standards is to prevent the use of equipment that could be a potential source for methane or coal explosion or fire.

[00:20:47] Speaker 04:
Now, the areas in or in by the last open crosscut, in return air, and within 150 feet of pillar workings or longwall facers are hazardous conditions with an increased risk of methane and coal dust due to mining activity.

[00:21:06] Speaker 04:
I have two points that I want to emphasize today.

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My first point is the operators got the exemption they needed from the permissibility requirements to allow the use of electronic surveying equipment in these high-risk areas.

[00:21:21] Speaker 04:
As opposing counsel mentioned, due to the current unavailability of permissible electronic surveying equipment,

[00:21:30] Speaker 04:
or viable new mechanical-serving equipment, the Assistant Secretary granted the petitions.

[00:21:37] Speaker 04:
And he just didn't rubber-stamp it, posing counsel brought to the Court's attention that initially, Emsha denied these petitions.

[00:21:45] Speaker 04:
They were under the impression that there was adequate mechanical equipment available for the operators to use.

[00:21:51] Speaker 04:
In fact, some of the minds testified on the record that they do indeed have

[00:21:55] Speaker 04:
mechanical surveying equipment at their disposal.

[00:21:59] Speaker 04:
However, they did testify that it's used equipment.

[00:22:02] Speaker 04:
It may be hard to repair, find replacement parts.

[00:22:06] Speaker 04:
The judge heard this.

[00:22:07] Speaker 04:
The judge decided that based on this unavailability of permissible or new viable used mechanical,

[00:22:15] Speaker 04:
equipment that these petitions needed to be granted.

[00:22:18] Speaker 04:
The assistant secretary agreed with that finding that there was no practical alternative here.

[00:22:25] Speaker 04:
So I just wanted to point out that the operators did get the exemption they sought.

[00:22:29] Speaker 02:
Can I ask you, is there anything in the record that tells us the percentage of mines that are using mechanical, the percentage of mines that are using these non-permissible?

[00:22:40] Speaker 02:
You get a picture of

[00:22:43] Speaker 02:
old worn out, not worn out, but old equipment, the mechanical and this electronic equipment that if the safety measures are in place can be used to do a better job and so forth.

[00:22:57] Speaker 02:
And there just doesn't seem to be any picture of

[00:23:02] Speaker 02:
where the mining industry is in this, whether they're still back with 90 percent of them using mechanical or what?

[00:23:09] Speaker 04:
There's nothing in the record that... No, I don't recall any information to that effect in the record.

[00:23:14] Speaker 04:
Maybe opposing counsel has a better idea of that, but it was not on the record.

[00:23:19] Speaker 04:
I know in the first trial, I think the operators testified that they did not have mechanical.

[00:23:25] Speaker 04:
serving equipment.

[00:23:26] Speaker 04:
They couldn't find it if they wanted to.

[00:23:28] Speaker 04:
But in the second trial, there was definitely testimony by, I believe, every one of the operators that they did indeed have in their possession mechanical equipment.

[00:23:40] Speaker 04:
So this, while I'm on the subject of the

[00:23:47] Speaker 04:
the availability, I just want to mention the Assistant Secretary's condition on viable new mechanical serving equipment.

[00:23:56] Speaker 04:
And if that equipment were to become available, then these conditions would no longer be needed.

[00:24:04] Speaker 04:
The Assistant Secretary found that if new mechanical serving equipment becomes available,

[00:24:12] Speaker 04:
and accurate serving can be performed under the standards.

[00:24:16] Speaker 04:
There would be no need for these modifications.

[00:24:19] Speaker 04:
He made that very clear to all of the operators involved.

[00:24:24] Speaker 04:
And I just would note for the Court that the Secretary's Rules of Practice for Petitions for Modification do contain a provision for revoking previously granted modifications based on a change of circumstances.

[00:24:37] Speaker 04:
or because findings which originally supported the modification are no longer valid.

[00:24:43] Speaker 04:
That would be the case.

[00:24:44] Speaker 03:
Could I just ask, to shut down production of a mine, does that mean in order to meet the Assistant Secretary's condition

[00:24:55] Speaker 03:
that the mine has to be out of operation for a minimum period of time?

[00:25:01] Speaker 04:
There was testimony about how much of a surveyor's time is spent in or in by the last open crosscut.

[00:25:08] Speaker 04:
If I recall correctly, I think it was 2 to 3 percent.

[00:25:12] Speaker 04:
of a surveyor's time.

[00:25:13] Speaker 04:
And with regard to the return error, I believe the testimony was 12 to 13 percent of the surveyor's time.

[00:25:21] Speaker 04:
So total you have about 15 percent of the surveyor's time spent in these high-risk areas.

[00:25:30] Speaker 03:
So that means how long does the mine have to be in non-production mode?

[00:25:39] Speaker 04:
Well, if a surveyor is surveying for eight hours a day, maybe 15% of those eight hours.

[00:25:47] Speaker 03:
We don't know.

[00:25:49] Speaker 03:
I mean, I'm a mine operator.

[00:25:51] Speaker 03:
I have to shut down the mine for a week before the... Well, I'm just asking the question.

[00:25:56] Speaker 03:
Before the surveyor can go into these potentially dangerous areas?

[00:26:01] Speaker 04:
No.

[00:26:02] Speaker 04:
while the surveying is taking place, right before the surveyor goes into that high risk area to perform the surveying.

[00:26:09] Speaker 03:
So if I have a mine that has 20 sections in it, and the surveyor wants to go into one section, even though the sections are interconnected,

[00:26:26] Speaker 03:
the surveyor can still go into that one section because there is no mining going on in that particular section?

[00:26:33] Speaker 03:
That's correct.

[00:26:34] Speaker 03:
Even though methane and dust may seep in from another section?

[00:26:43] Speaker 04:
Well, due to the air

[00:26:44] Speaker 03:
That assumes the ventilation system is working.

[00:26:47] Speaker 04:
Yes.

[00:26:48] Speaker 04:
I see.

[00:26:49] Speaker 04:
Yes, it does.

[00:26:50] Speaker 04:
And it would just pertain to the one section and only when the surveyors are in these high-risk areas, not when they're in other areas of the section, but only when the surveyors want to survey in or in by within 150 feet of the long wall or pillar workings or in the return area.

[00:27:08] Speaker 03:
So how often is the secretary at these mines?

[00:27:12] Speaker 03:
Not the secretary.

[00:27:13] Speaker 03:
The assistant secretary?

[00:27:14] Speaker 03:
The surveyor.

[00:27:15] Speaker 04:
Oh, the surveyor.

[00:27:16] Speaker 04:
There was testimony that they are in the mines.

[00:27:19] Speaker 04:
They can be there two or three times a week.

[00:27:26] Speaker 04:
Yeah.

[00:27:26] Speaker 04:
And it would only be in the section where the surveying would be occurring.

[00:27:30] Speaker 04:
I think opposing counsel alluded to the fact that many of these mines have more than one section operating.

[00:27:35] Speaker 04:
So it's not shutting down the entire mine.

[00:27:37] Speaker 04:
It's just shutting down the one section where the surveyors are working in those high-risk locations.

[00:27:45] Speaker 04:
The second point I want to raise.

[00:27:48] Speaker 02:
Do you know what would make an electronic survey equipment permissible?

[00:27:53] Speaker 04:
There was testimony by the assistant, by EMCHA's expert witness, Chad Huntley, when he examined the battery packs that he thought he himself could make the equipment permissible.

[00:28:08] Speaker 04:
I don't know the details of what it would take to make it permissible, but

[00:28:15] Speaker 04:
But he testified that he thought it could be done, and there was also testimony in the record about equipment that's being used in other countries and the hope that these companies might submit their equipment to EMSHA for approval and certification as permissible.

[00:28:33] Speaker 04:
Someday, that day is not yet come.

[00:28:37] Speaker 04:
We don't know how soon that day will come, if it will come.

[00:28:41] Speaker 04:
And with regard to the mechanical serving equipment, the operators examined some of it in the Parkwood Rosebud trial.

[00:28:53] Speaker 04:
They thought it wasn't of a quality that they would want to purchase.

[00:28:57] Speaker 04:
So we don't know if another company or that perhaps that same company will improve their product.

[00:29:02] Speaker 04:
and come out with a piece of mechanical surveying equipment that will be accurate enough for surveying in underground coal mines.

[00:29:09] Speaker 04:
We don't know when that day will come.

[00:29:11] Speaker 04:
And so that's why the Assistant Secretary... You said mechanical.

[00:29:14] Speaker 03:
Is that what you meant?

[00:29:15] Speaker 03:
Pardon?

[00:29:16] Speaker 03:
Your sentence referred to mechanical equipment, sufficiently accurate mechanical equipment.

[00:29:22] Speaker 03:
Yes.

[00:29:22] Speaker 03:
What does accurate mean?

[00:29:24] Speaker 03:
I thought the record here was that the Assistant Secretary's position was that

[00:29:31] Speaker 03:
Mechanical equipment may not be as accurate as electrical, but you could repeat the mechanical survey and through repetition end up with something that's as accurate a survey as would occur with electronic equipment.

[00:29:53] Speaker 03:
That's correct.

[00:29:54] Speaker 03:
So by repetition,

[00:29:57] Speaker 03:
Does that double the amount of surveyor time in these dangerous areas?

[00:30:02] Speaker 04:
It could, but I would like to point out that these circular surveys, the loop surveys that the surveyors conduct, can be done with mechanical equipment and electronic surveying equipment.

[00:30:15] Speaker 04:
There was testimony that they do them with both types of equipment in order to increase the accuracy.

[00:30:21] Speaker 04:
the surveying accuracy.

[00:30:23] Speaker 02:
But the electronic is all non-permissible, right?

[00:30:26] Speaker 02:
At this time, yes.

[00:30:27] Speaker 02:
And they're using it according to conditions that you've imposed?

[00:30:31] Speaker 04:
Yes.

[00:30:32] Speaker 04:
All right.

[00:30:32] Speaker 04:
These mines are using the electrical equipment right now if they choose to do so under these conditions.

[00:30:41] Speaker 02:
All right.

[00:30:43] Speaker 02:
What is your

[00:30:46] Speaker 02:
explanation for why Rosebud was using non-permissible electronic equipment for 20 years without any citation?

[00:30:55] Speaker 04:
The explanation is that Emsha didn't know about it.

[00:30:58] Speaker 04:
Why not?

[00:31:00] Speaker 04:
I have heard, this is not on the record, I've heard these violations are hard to catch.

[00:31:07] Speaker 04:
I don't recall that being in the record.

[00:31:09] Speaker 04:
But on a conference call with the first judge, Lesniak, he asked MCHA's counsel whether she knew of any violations issued at the Parkwood Rosebud Mines, and she said she did not know of any.

[00:31:22] Speaker 04:
She didn't say there.

[00:31:23] Speaker 04:
There haven't been any.

[00:31:25] Speaker 04:
Emtia's known all along.

[00:31:26] Speaker 04:
Emtia, what's the word he used, tacitly approved the use of the equipment.

[00:31:31] Speaker 04:
That was not her answer.

[00:31:33] Speaker 04:
Her answer was that she did not know of any citations issued to these mines.

[00:31:39] Speaker 04:
And then the assistant secretary in his decision did say, maybe in a footnote, but he did say that there was no evidence that Emtia knew that the operators were using.

[00:31:51] Speaker 02:
Let me ask you something, and don't go outside the record.

[00:31:54] Speaker 02:
If it's in the record, and I don't think it is from what you've just said, how is whether somebody is using mechanical surveying equipment or electronic hard to catch?

[00:32:07] Speaker 02:
How would that be?

[00:32:10] Speaker 04:
The MSHA inspector would have to be down there when the surveying was occurring.

[00:32:14] Speaker 04:
When the MSHA inspectors arrive at the mine, oftentimes miners know that the MSHA inspectors are there.

[00:32:22] Speaker 02:
You said they're doing this two or three times a week.

[00:32:24] Speaker 04:
Right.

[00:32:25] Speaker 04:
That's what I recall from the record.

[00:32:27] Speaker 04:
The surveys are there two to three days a week.

[00:32:33] Speaker 04:
And the inspectors may not be there while the surveyors are conducting their surveying work.

[00:32:40] Speaker 02:
But they inspect routinely.

[00:32:43] Speaker 04:
Yes, they do inspect the mines.

[00:32:45] Speaker 04:
Right.

[00:32:45] Speaker 04:
Yes, especially the ones with the spot inspections because they're gassier than others.

[00:32:51] Speaker 04:
So the amount of time the inspectors spend at the different mines varies, but they do inspect regularly.

[00:32:58] Speaker 04:
The second point I'd like to make very quickly is that the Assistant Secretary reasonably required multiple safety measures to ensure that the use of the non-permissible electronic surveying equipment will not cause a mine explosion or fire.

[00:33:13] Speaker 04:
The Assistant Secretaries are reasonable given the risks involved, and so the Assistant Secretary properly exercised his discretion.

[00:33:23] Speaker 04:
Regarding the condition on cessation of production, the Assistant Secretary found that that would protect miners by reducing the likelihood that the equipment will encounter float coal dust and explosive concentrations of methane and result in a methane or dust ignition or explosion.

[00:33:42] Speaker 04:
The records indicate that non-permissible electronic surveying equipment is not intrinsically safe and has an ignition potential that mechanical surveying equipment does not have.

[00:33:55] Speaker 04:
There was testimony that the equipment can spark if there is something wrong with it.

[00:34:00] Speaker 04:
For example, loose connection.

[00:34:01] Speaker 04:
Even the act of shutting the equipment off might create a spark.

[00:34:06] Speaker 04:
And in addition, the batteries in the equipment can short out and cause an arc.

[00:34:13] Speaker 04:
Opposing counsel mentioned the case law and the credibility and the demeanor and the truthfulness, and the ALJs had the opportunity to observe the witnesses firsthand.

[00:34:24] Speaker 04:
That may be true, but looking at the assistant secretary's decisions, you can see that he

[00:34:31] Speaker 04:
did not impugn their demeanor, their truthfulness.

[00:34:34] Speaker 04:
He relied on the science.

[00:34:36] Speaker 04:
The Assistant Secretary looked at the reports of the operator's witnesses, Mr. Ryder and Mr. Hartzog, and he found that their opinions were not supported with test results or data.

[00:34:48] Speaker 04:
And he found, in particular, that Mr. Ryder's water immersion and dust swab tests were suspect for many reasons.

[00:34:55] Speaker 04:
One of which, water is not a proper substitute for gas.

[00:35:00] Speaker 04:
There was moisture detected in all of the pieces of used equipment that he tested.

[00:35:05] Speaker 04:
And with regard to the dust inside the equipment, there just wasn't enough information about the use of the equipment underground since the equipment had been last serviced and cleaned.

[00:35:17] Speaker 04:
So for these reasons, the assistant secretary discounted their opinions.

[00:35:25] Speaker 04:
He did find that the EMSA's expert, Chad Huntley, the EMSA electrical engineer, opined that dust can enter non-permissible electronic equipment and layer on internal components, causing the equipment to overheat and ignite methane.

[00:35:42] Speaker 04:
And I just want to point out for the court that Ryder agreed.

[00:35:46] Speaker 04:
that if there were sufficient openings, dust could layer inside the equipment and cause it to overheat.

[00:35:53] Speaker 04:
And that's a specific finding by the Assistant Secretary.

[00:35:57] Speaker 04:
And Ryder's report also indicates that there were several large openings in the instruments which may not be sealed or covered during use and operation to prevent gas and dust from entering the equipment.

[00:36:11] Speaker 04:
Quickly, with regard to the serving practices and ventilation systems, opposing counsel mentioned the dugout canyon mine.

[00:36:19] Speaker 04:
Assistant Secretary specifically mentioned the dugout canyon mine.

[00:36:24] Speaker 04:
He also noted that the operators largely failed to provide record sites to him in evaluating their arguments.

[00:36:30] Speaker 04:
However, his review of the record indicated that the testimony was uncertain.

[00:36:38] Speaker 04:
As to exactly what entries the surveyors are surveying in, where they set up, how close to the face are they in the middle of the entry, are they down when there was testimony by the operators, witnesses that usually we do this, seldom we do that.

[00:36:55] Speaker 04:
So the Assistant Secretary just found the records uncertain to support that argument.

[00:37:01] Speaker 04:
And with regard to tubing and curtains, Your Honor's referenced earlier the fact that there are a lot of violations for ventilation requirements.

[00:37:11] Speaker 04:
And the assistant secretary noted that, as well as the fact that curtains and tubing could have breaches and often, you know, or other problems and not always work effectively.

[00:37:23] Speaker 04:
And with regard to the returns,

[00:37:27] Speaker 04:
which have ventilated the face.

[00:37:30] Speaker 04:
When production is occurring, they may have a greater accumulation of methane and dust.

[00:37:35] Speaker 04:
And so for these reasons, the assistant secretary is requiring that production cease on the section before the serving equipment is used in these high-risk areas.

[00:37:47] Speaker 02:
Can I ask you about the third condition?

[00:37:49] Speaker 02:
Is that anything other than theoretical?

[00:37:51] Speaker 02:
I mean, what I'm hearing this morning is nobody's going to

[00:37:59] Speaker 02:
spend time coming up with a mechanical equipment.

[00:38:05] Speaker 02:
And so to say to them as a third condition, if there's viable mechanical equipment, you've got to go back to it.

[00:38:13] Speaker 02:
And the challenge is that it's not safety related.

[00:38:16] Speaker 02:
But it sounds like a condition that's just never going to be met.

[00:38:23] Speaker 02:
And Amstrad didn't think it ever would be met from what I'm hearing this morning.

[00:38:29] Speaker 04:
Well, the condition also includes permissible electronic serving equipment.

[00:38:33] Speaker 04:
So either permissible or mechanical, either way, the secretary is going to revisit this if we get either of those options.

[00:38:43] Speaker 04:
and that is his intention.

[00:38:45] Speaker 04:
And he put everyone on notice that that is his intention.

[00:38:47] Speaker 04:
The last condition that the Assistant Secretary imposed was the float coal dust and suspension.

[00:38:54] Speaker 04:
He was concerned about float coal dust being rapidly placed in suspension and float coal dust layering on internal

[00:39:02] Speaker 04:
components of the equipment and causing the equipment to overheat and ignite methane.

[00:39:08] Speaker 04:
In his decision, and the record points out, that activity other than active mining can cause float coal dust to go into suspension.

[00:39:16] Speaker 04:
For example, fans, even exhaust from large pieces of equipment.

[00:39:21] Speaker 04:
So active mining can cause float coal dust, but there's other activity in the mine that can also cause float coal dust.

[00:39:27] Speaker 04:
So to the extent opposing counsel argues the condition is redundant, I would argue that's not the case.

[00:39:33] Speaker 04:
First and foremost, I see I'm out of time.

[00:39:36] Speaker 04:
Can I finish my thought?

[00:39:38] Speaker 04:
I just want to remind the court that the equipment the operators propose to use manufactured by Topcon has specific explicit safety warnings not to use the equipment in underground coal mines.

[00:39:50] Speaker 04:
and in gassy and dusty areas.

[00:39:53] Speaker 04:
And those warnings certainly support what the Assistant Secretary imposed.

[00:39:57] Speaker 04:
Other granted modifications have these two conditions in them, and there is no indication in the records that any of the mines to which those granted modifications apply have been unable to comply with the conditions.

[00:40:13] Speaker 04:
And those include some of the mines at issue in these cases.

[00:40:17] Speaker 04:
And so we would say, in conclusion, we would submit that the Assistant Secretary considered the relevant facts and articulated a rational connection between those facts found and those choices made.

[00:40:30] Speaker 03:
So Council, the real objection is to the requirement to cease production?

[00:40:39] Speaker 04:
It sounds like the operators don't want to cease production.

[00:40:42] Speaker 04:
And because of the economic perhaps.

[00:40:46] Speaker 03:
Well, I'm just trying to understand if you say all these other minds aren't having any problems of complying with these conditions.

[00:40:57] Speaker 03:
You started out saying they won, but there are a couple of conditions they have to comply with.

[00:41:01] Speaker 03:
And as Mr. Henson has pointed out, one of them is in their favor.

[00:41:09] Speaker 03:
and the other two seem directly related to production activities.

[00:41:15] Speaker 03:
And you've indicated that as articulated by the assistant secretary, it's a limited shutdown.

[00:41:27] Speaker 04:
Yes, it's in the record that it's a small percent of surveyors' time spent.

[00:41:32] Speaker 03:
No, I don't think it's the question.

[00:41:35] Speaker 03:
All right, I'll let it go.

[00:41:36] Speaker 03:
Thanks.

[00:41:37] Speaker 04:
And I do believe that's why there was testimony in the record about and in the Assistant Secretary's decision about these conditions not being overly burdensome because it's not an extensive part of the surveyor's work to work in these high-risk areas.

[00:41:55] Speaker 04:
All right.

[00:41:56] Speaker 04:
Thank you.

[00:41:57] Speaker 02:
How much time does Mr. Moore have?

[00:42:01] Speaker 02:
OK.

[00:42:02] Speaker 01:
I will keep it short, Brian.

[00:42:04] Speaker 01:
There were a couple things I wanted to point out.

[00:42:07] Speaker 01:
While there is evidence in the record that in some mines they survey only two to three days a week in a particular section, there are other mines that they're in the sections every day.

[00:42:16] Speaker 01:
It just depends on how fast they're moving.

[00:42:19] Speaker 03:
In these mines?

[00:42:20] Speaker 01:
Excuse me?

[00:42:21] Speaker 03:
In the mines before us?

[00:42:23] Speaker 01:
The mines, in all of the underground mines, it can vary between how often they're in a section to a particular section to survey.

[00:42:33] Speaker 01:
If you like... No, no, no.

[00:42:35] Speaker 03:
I just want to be clear what we're dealing with in these cases.

[00:42:38] Speaker 03:
That's all.

[00:42:39] Speaker 01:
Yes.

[00:42:40] Speaker 03:
And counsel represented there two or three days a week.

[00:42:46] Speaker 01:
I believe the record also shows that in some sections they're in there every day.

[00:42:49] Speaker 01:
I see.

[00:42:50] Speaker 03:
Um, second, so we're all understand... So just so I understand what this case is about, it's the shutdown of production that's the real problem here?

[00:43:01] Speaker 01:
That's the primary focus of our appeal.

[00:43:04] Speaker 03:
And that's just an economic concern?

[00:43:07] Speaker 01:
Well, it's an economic concern and disruption concern.

[00:43:11] Speaker 01:
I didn't mean just, but it's a... Well, for example, realistically, if I were, if I have that,

[00:43:18] Speaker 01:
And I go up on the section to survey.

[00:43:20] Speaker 01:
I tell the section foreman, I'm there.

[00:43:22] Speaker 01:
And no matter where I am, he's probably going to have to shut down.

[00:43:25] Speaker 01:
Because there's a case that you have, this court decided years ago, Freeman United was a petition for modification case.

[00:43:33] Speaker 01:
And there was having to communicate across the section.

[00:43:40] Speaker 01:
You don't have a line of sight or anything like that most times.

[00:43:46] Speaker 01:
Second of all, I wanted to make it clear that IMSA inspects mines regularly, particularly now that there are far fewer mines.

[00:43:55] Speaker 01:
There are not far fewer inspectors, and they have to go someplace.

[00:43:58] Speaker 01:
Some of the big mines, they're there every day, two to three inspectors.

[00:44:03] Speaker 01:
But I also want to say that Mr. Carmelino, who was in the industry and then went with IMSA,

[00:44:12] Speaker 01:
And I forget how long he was with Amherst, but it was some period of time.

[00:44:16] Speaker 01:
And he was in an area where he would have inspected RMP mines, well, Rosebud mines.

[00:44:24] Speaker 01:
And those mines were mines that he surveyed it with electronic equipment.

[00:44:30] Speaker 01:
To answer another question, I believe the majority of the industry has electronic surveying instruments.

[00:44:36] Speaker 01:
There are approximately 200 other petitions for modification that they're sitting out there waiting for this decision.

[00:44:42] Speaker 01:
There is an ALJ decision that's been issued that's waiting for Assistant Secretary's decision.

[00:44:48] Speaker 03:
But as I understand, the Secretary's position here is that they may be operating with electric

[00:44:54] Speaker 03:
but they're complying with the conditions.

[00:44:59] Speaker 01:
Well, the minds that had these petitions granted, is that what you're referring to, Your Honor?

[00:45:05] Speaker 03:
Well, these petitions were granted with conditions, and apparently other minds where the petitions have been granted with conditions

[00:45:16] Speaker 03:
are complying with the conditions and using the electric?

[00:45:20] Speaker 01:
The only minds that have actual granted petitions with these conditions are Rosebud and Canyon Fuel.

[00:45:28] Speaker 01:
Everybody else who's got a petition for modification is waiting.

[00:45:34] Speaker 01:
And their initial decisions from MSHA were that they were denied.

[00:45:38] Speaker 03:
All right, but so I'm clear.

[00:45:40] Speaker 03:
The applications for the modification included their own conditions.

[00:45:46] Speaker 01:
Yes.

[00:45:48] Speaker 01:
All right.

[00:45:48] Speaker 01:
Yes, they did.

[00:45:49] Speaker 01:
And that's what happened here.

[00:45:51] Speaker 01:
So you all understand that when Rosebud and Canyon Fuel filed their initial petitions, they didn't have all the conditions that now exist having gone through two hearings.

[00:46:02] Speaker 01:
There are a lot of conditions that have

[00:46:05] Speaker 01:
have, like every other litigated petition for modification case, you get a lot more conditions as you go along.

[00:46:12] Speaker 01:
We just said enough is enough.

[00:46:15] Speaker 01:
If you look at what IMCH is granted on diagnostic and testing equipment and what we have, we should be able to get out from underneath the production cessation.

[00:46:28] Speaker 01:
I have nothing further unless there are more questions.

[00:46:30] Speaker 01:
All right.

[00:46:30] Speaker 01:
Thank you.

[00:46:32] Speaker 02:
Thank you.