[00:00:01] Speaker 03:
Case number 14-1170, Tilden Mining Company, Inc.

[00:00:04] Speaker 03:
Petitioner vs. Secretary of Labor Ed El.

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Mr. Moore for the petitioner, Ms.

[00:00:09] Speaker 03:
Johnson for the respondents.

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Morning.

[00:00:37] Speaker 02:
May it please the court, I'm R. Henry Moore, representing the Tilden Mining Company.

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This case involves the mandatory standard promulgated by the Mine Safety and Health Administration with respect to ground continuity and resistance on grounding systems and the testing of those.

[00:00:55] Speaker 02:
There are two things I don't think this case is about.

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One, it is not a mortgage banker's case, and

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while we did argue below on the case.

[00:01:05] Speaker 00:
When you say that, you're not talking about the subject matter, right?

[00:01:08] Speaker 02:
No, the subject matter is not it, but it's not a presence.

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We're not arguing at this point that the change in interpretation required rulemaking.

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That was a subsidiary argument below.

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Obviously, the Supreme Court has dealt with that issue.

[00:01:24] Speaker 05:
I also don't think it's a deference case, because frankly... I thought you were arguing, I mean, maybe it's just a repackaging, but you were arguing that this had sufficient substantive content that it still had to go through notice and comment rulemaking.

[00:01:36] Speaker 05:
Yes, but that... You're not making the change point from where I stand.

[00:01:40] Speaker 02:
We're not arguing a change in interpretation.

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We're saying that they have adopted, essentially, a substantive rule.

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And if you look at the statutory language,

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First of all, 5612028 does not talk about extension cords and does not talk about power cords.

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It does use the term grounding systems.

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Can I say before you answer that in a case like this,

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where expert material is all around us and the judges are not experts, diagrams, clarification would be most welcome.

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But in any event, grounding systems appears to me to be a very broad term and at least I know that in our house we have outlets which ground the electricity and

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assuming to make it a system, it has to connect with all kinds of things.

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And I guess it seems to be offhand, the natural reading would be all the things that are supposed to connect with that grounding.

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I mean, why is that not a sensible reading of regulation?

[00:03:05] Speaker 02:
Because a grounding system

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I'm sure this building is grounded.

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But let's take some things easier for us to understand.

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Your car has an electrical system.

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And you plug things into it all the time and take it out.

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And when your battery goes dead, the mechanic checks the electrical system on the car.

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He doesn't check all your cords and that.

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And while Judge Williams, you suggest that while anything you plug in,

[00:03:38] Speaker 02:
The problem is that, and we refer back to the Hibbin-Taconite case, we don't have all the diagrams and the likeness because the Hibbin-Taconite case was very clear and didn't enforce it at the mines in the Iron Range up again until 2004.

[00:04:04] Speaker 00:
Can I ask, I have a diagram in my head.

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And if you could explain, I'm going to expose it.

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And if you could explain to me whether the diagram in my head is wrong, that would be helpful.

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And I'm going to use the program policy manual, the 2003 version, as my guide here.

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So it describes three things which it says are part of a grounding system.

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I understand you may not agree that they're part of one.

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But I still want to know the pieces.

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And it's got one, two, three.

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Number one is equipment grounding conductors.

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These are the conductors used to connect the metal frames of electrical equipment to the grounding electrode conductor.

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So that's one thing, right?

[00:04:43] Speaker 00:
Yes.

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That's the metal frame around whatever the piece of equipment is.

[00:04:47] Speaker 02:
You can think of it best as you have a house, you have an electrical box in the basement, and that's what you're talking about.

[00:04:55] Speaker 00:
Okay, well, see, I don't want to think about it that way.

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I want to know what's wrong with what I'm thinking about.

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You have a large piece of portable electronic equipment, okay?

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An electric generator, for example, and I have it in my attic to make sure the air conditioner or the heater works when the storm comes.

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Imagine that, okay?

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And there is something around that, which is the electrical grounding conductor.

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Then there is something called a grounding electrode conductor, which they describe as the conductors connecting the grounding electrode to the equipment grounding conductor.

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And then the bottom thing is the grounding electrodes, which are the rods, which maybe might be described as lightning rod in the end, whatever in the end is grounded into the ground.

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Yes.

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Right?

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OK.

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So why isn't, is an extension cord a grounding electrode conductor?

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Do you agree with that?

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if it were plugged in, yes.

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But if it's not plugged in... Okay fine, it's not working when it's not plugged in, but when it's plugged in, you have an electronic machine, you plug in the...

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extension cord and then hopefully with a three prong plug, you plug it into the outlet.

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And at that point it is a grounding electrode conductor, correct?

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If it has a grounding electrode conductor.

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If it has a third wire.

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If it has a third wire.

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Alright, right, and that's the wire that doesn't conduct electricity except in the event of a short, in which case the hope is that instead of going through my hand, it will go through this third wire.

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Is that right?

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Yes.

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Okay.

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So

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It is what is necessary to get the equipment, I don't know, the electric drill in my hand, to the power source, right?

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That third wire is what drives it, right?

[00:07:03] Speaker 00:
Yes.

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Okay.

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So now the question is, since it is a grounding electrode conductor and it is necessary to complete the circuit, why isn't it a reasonable reading of the words grounding system to include

[00:07:20] Speaker 00:
the prong at the end that puts it into the home system, which eventually leads to the grounding electrodes, the third wire, which is running through the extension cord, and whatever the housing of my drill.

[00:07:37] Speaker 00:
Why isn't all of that a system?

[00:07:40] Speaker 02:
Well, Your Honor, let me say this.

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This in the policy is policy.

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The standard itself speaks of a grounding system.

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I want to know why it's not a reasonable reading for this to be a grounding system.

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It's three pieces, all of which are necessary to complete the circuit.

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Because otherwise the standard really doesn't fit power cords, pure drill, or extension cords.

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And the reason is, we're talking about a grounding system.

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looking back at the in fact my case uh... i want to pretend that didn't occur okay as a senator that we wouldn't have we wouldn't have the record we have here we would have a four more complete record you can keep the record you want i just don't want the findings because uh... i don't know whether that case was rightly or wrongly decides i don't want anything about all right don't worry about your time i'm not worried that we have to tell you understand this i i've been before you and i think you're right all right here's the thing we've got a

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standard that says you've got to test it every time you install it.

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And that makes sense if you're talking about some system that's in place to serve programming.

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It doesn't make sense for extension codes.

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We have, you can have it, if you interpret installation, if you define installation, it would be every time you plugged it in.

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So every time the clerks came in here and plugged in their laptops, that would be a new installation.

[00:09:15] Speaker 00:
Well, the agency says that installing is the first time.

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When you buy the cord and you bring it up there and you install it.

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But that is a different question.

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the installation.

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That's a separate question about whether it's reasonable to require looks every time, re-examination every time it's plugged in.

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But what I'm trying to figure out is why isn't it reasonable to think of

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those three pieces, including the thing that attaches the electrical equipment to the outlet, part of a system of grounding.

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If you're talking about something that's stationary and fixed, it is reasonable.

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The problem is that when you apply it to something like extension cords and power cords, that it may be plugged in hundreds of times in a given year, that you cannot

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The rest of the standard doesn't fit.

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The installation doesn't fit.

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Why?

[00:10:17] Speaker 05:
Maybe there's just a lot of installations.

[00:10:19] Speaker 02:
It's pretty easy to test these things, right?

[00:10:24] Speaker 02:
I'm not necessarily sure that it's all that easy.

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Because here's the thing.

[00:10:28] Speaker 02:
Oh, yeah, that's what he says.

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But here's the thing.

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You're talking about a cord.

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A cord is only a component of that system, and the standard requires testing of the grounding system.

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So frankly, if you plug in a cord, in a sense, you've modified the system.

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And again, that doesn't fit.

[00:10:53] Speaker 00:
So your position is that nothing that has to be plugged into an outlet is part of a system.

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So if there's huge electrical equipment,

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But your position is it's only if it is permanently installed directly into the electrical current.

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Is that it?

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Nothing else is part of a grounding system.

[00:11:16] Speaker 02:
That's the way we see it, Your Honor.

[00:11:18] Speaker 00:
What do you do with the words in the definition that says electrical grounding means to connect with the ground to make the earth part of the circuit?

[00:11:26] Speaker 00:
That's the agency's definition.

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That was a definition before the Taconite case.

[00:11:31] Speaker 00:
Right.

[00:11:35] Speaker 00:
It does seem like, if that's the definition of electrical grounding, that just adding the system is what's necessary to make that happen.

[00:11:43] Speaker 02:
Well, let's take your large equipment.

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I mean, that's not plugged in.

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When you have a motor.

[00:11:51] Speaker 00:
It's attached to electricity somehow.

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It's permanently wired.

[00:11:55] Speaker 00:
Yeah, I understand.

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So your position is only if it's permanently wired.

[00:11:59] Speaker 00:
Essentially, yes.

[00:12:01] Speaker 05:
But wait, you've got a regulation, 30 CFR, fix 56.12027, that talks about grounding mobile equipment.

[00:12:08] Speaker 05:
So it can't be limited to permanent stuff.

[00:12:09] Speaker 02:
We've got to deal with mobile equipment.

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But it's mobile equipment with trailing cables.

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What's a trailing cable?

[00:12:17] Speaker 02:
A trailing cable, though the secretary tries to equate it to an extension cord.

[00:12:23] Speaker 02:
What happens with a trailing cable?

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is it's connected either into a substation or a junction box that connects into a substation.

[00:12:31] Speaker 05:
Okay, so you're bound by, like, just give me an example of a piece of mobile equipment and then what the trailing cable is on it.

[00:12:38] Speaker 00:
Can I just understand, are you saying that's permanent?

[00:12:40] Speaker 00:
It's mobile but it's permanent?

[00:12:41] Speaker 02:
Well, it's semi-permanent.

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Can it be detached?

[00:12:44] Speaker 02:
Move to another part of the mind?

[00:12:46] Speaker 02:
Not easily.

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You can't just pull it out of the wall.

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I'll give you an example.

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Just help me understand just for a minute.

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Can it be detached?

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It can be detached given certain procedures in place.

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Because what you would have to do is de-energize the source of power, then perform electrical work to disconnect it.

[00:13:06] Speaker 02:
It is not unplugging it.

[00:13:09] Speaker 02:
For example, a large drill in one of these taconite mines that we're talking about has a trailing cable that goes back normally either to a substation or a junction box and gets physically electrically connected.

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But you just can't pull it out.

[00:13:24] Speaker 00:
But every time it's connected, is that an installation?

[00:13:27] Speaker 02:
Yes.

[00:13:29] Speaker 00:
That's the way it's treated, yes.

[00:13:30] Speaker 00:
Right.

[00:13:32] Speaker 00:
And conceptually at least, it looks very much like plugging the cable.

[00:13:36] Speaker 00:
I appreciate you don't do it as often, but it serves the same purpose, right?

[00:13:40] Speaker 00:
There has to be some grounding wire in that trailing cord, right?

[00:13:43] Speaker 02:
There is a grounding wire in the cable.

[00:13:46] Speaker 02:
Right.

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but it is not the same thing.

[00:13:51] Speaker 02:
To equate extension cords to that sort of trailing cable is to say this building is the equivalent of a shack that a homeless person builds.

[00:14:04] Speaker 02:
It's not the same thing.

[00:14:05] Speaker 00:
It's a matter of extreme degree.

[00:14:08] Speaker 00:
So it's a matter of degree, but it is conceptually the same.

[00:14:12] Speaker 00:
You have a very large drill attached by a trailing cable.

[00:14:18] Speaker 00:
that is then plugged in or attached or installed into a power source, right?

[00:14:23] Speaker 02:
Into a substation.

[00:14:24] Speaker 00:
Right, which ultimately is attached to the electrical grid.

[00:14:28] Speaker 00:
Yes.

[00:14:29] Speaker 00:
Alright.

[00:14:29] Speaker 00:
Similarly, you have a very small drill.

[00:14:32] Speaker 00:
Sometimes it may have its own cord long enough to plug into that.

[00:14:35] Speaker 00:
I never seem to be able to get that.

[00:14:37] Speaker 00:
I always have to add an extension cord.

[00:14:40] Speaker 00:
It is plugged into my, with a three-pawn plug, into my power outlet.

[00:14:46] Speaker 00:
Now I appreciate one is bigger than the other, but conceptually it looks identical, or at least identical enough,

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that we would regard what the agency says as a reasonable reading of its rule.

[00:15:00] Speaker 00:
Tell me why that's not so.

[00:15:01] Speaker 02:
That's not so because repeatedly in its own policy, this agency keeps drawing exceptions for things like extension and power cords.

[00:15:13] Speaker 02:
For example, they mention in there that if you have a ground fault interrupter,

[00:15:23] Speaker 02:
that you don't have to do the continuity test.

[00:15:29] Speaker 02:
Well, okay, where's that in the standard?

[00:15:31] Speaker 02:
It's not in the standard.

[00:15:35] Speaker 02:
If you're looking for this, it's... Would you rather they require more tests?

[00:15:41] Speaker 02:
No, I don't want them to require more tests.

[00:15:42] Speaker 02:
Actually, what I want them to do, Your Honor, is to go back and do rulemaking as they should so that what I consider the mess of a regulatory standard gets straightened out so it makes sense.

[00:15:54] Speaker 00:
If we thought that the 2003 version of the program policy manual was a reasonable reading of the rule under our

[00:16:09] Speaker 00:
Would that be the end of the case?

[00:16:12] Speaker 02:
If you thought that the wool was ambiguous, and then it was a reasonable reading of the wool, yes.

[00:16:21] Speaker 00:
That would be the end.

[00:16:21] Speaker 02:
By the case law, yes.

[00:16:23] Speaker 00:
And you don't think the words grounding systems are ambiguous.

[00:16:26] Speaker 00:
That's the point, right?

[00:16:28] Speaker 02:
I don't think the standard is ambiguous.

[00:16:30] Speaker 04:
Do you think that because of the context?

[00:16:32] Speaker 02:
Yes, I think of it as the context of our whole standard.

[00:16:35] Speaker 04:
The requirement of testing with every installation makes the reader think this can't possibly apply to everything that requires sticking an extension cord into an outlet.

[00:16:46] Speaker 02:
Right.

[00:16:47] Speaker 02:
That's exactly right.

[00:16:49] Speaker 02:
And while Judge Garland, you questioned the findings in having taconite,

[00:16:56] Speaker 02:
One of the things that's clear from that case is that both an MSHA expert, well, the evidence was that no one interpreted to apply to extension boards.

[00:17:10] Speaker 00:
Well, I had one expert testify he didn't.

[00:17:13] Speaker 02:
And, well, you had one engineer from U.S.

[00:17:15] Speaker 02:
Steel testify to that, and you also had MSHA's survey of the industry that said that people didn't understand it to be that way.

[00:17:24] Speaker 04:
And the red brief says that the citations would stand if extension courts were regarded as not covered.

[00:17:36] Speaker 02:
It doesn't exactly say why that's true.

[00:17:39] Speaker 02:
That's an interesting question, Your Honor, because that really hasn't been addressed at the ALJ level or the commission level.

[00:17:46] Speaker 02:
And I am not sure that the way

[00:17:55] Speaker 02:
this follow-up standards are written, 120, 25, 26, and 27, actually apply to hand tools.

[00:18:04] Speaker 02:
And that's something that would have to be, frankly, if you ruled that extension cords are uncovered, send it back to the ALJ and he can really address the issue of whether this particular piece of equipment needs to be grounded.

[00:18:20] Speaker 02:
Because we all know that there is equipment you can buy.

[00:18:25] Speaker 02:
handheld tools and the like, I've got to drill at home.

[00:18:29] Speaker 02:
It doesn't have a third prong on the plug.

[00:18:33] Speaker 02:
And she says... Must be an old one.

[00:18:35] Speaker 00:
I don't think you can buy that anymore.

[00:18:37] Speaker 02:
Well, yeah, but that doesn't have anything to do with anything other than litigation.

[00:18:44] Speaker 00:
Well, that's something to do with people being shocked and new rules being imposed.

[00:18:53] Speaker 02:
I'm not sure what it has to do with you on it, and certainly not on this record.

[00:18:57] Speaker 02:
But I don't think, if you will, that extension cords don't have to be tested.

[00:19:02] Speaker 02:
I think at this point, based on what the secretary has asserted, then you'd probably have to remand it back to the ALJ.

[00:19:09] Speaker 02:
And frankly, the case has gone on long enough.

[00:19:11] Speaker 02:
But I think he didn't really address that issue.

[00:19:14] Speaker 01:
He addressed the issue of the cords, and that's what we had moved for summary decision on.

[00:19:18] Speaker 05:
There's a declaration by Mr. I don't know if I'm saying it right, Lippinen, who said he's been enforcing this regulation as to extension cords at Tilden Mining since 2004.

[00:19:28] Speaker 05:
And I didn't see any disputing of that.

[00:19:32] Speaker 02:
There was a citation that was issued that was vacated by the Solicitor's Office.

[00:19:41] Speaker 01:
I don't think Mr. Lippinen issued it.

[00:19:43] Speaker 01:
One of his co-inspectors issued it.

[00:19:47] Speaker 02:
I'm not aware of.

[00:19:51] Speaker 02:
And they offered no citations to show that, so I'm not quite sure what he meant by enforcing.

[00:19:56] Speaker 02:
But there's no history here that we can point to and say, OK, yeah, these are the ones Lippenden's issued.

[00:20:03] Speaker 02:
There are several others pending back before the Department of Review Commission ALJ on this same issue that have been just sitting there waiting for this case.

[00:20:14] Speaker 05:
I'm sorry, you said there was one citation, was it asked to extension cords that was vacated by the solicitor?

[00:20:19] Speaker 01:
I'm fairly certain it was, yes.

[00:20:21] Speaker 05:
Do you know why it was vacated?

[00:20:23] Speaker 05:
And when that citation was?

[00:20:26] Speaker 02:
There is nothing in the record that shows why it's vacated.

[00:20:33] Speaker 02:
We offered it, asked judicial notice of it.

[00:20:38] Speaker 02:
I handled it with the same solicitor who handled giving taconite and that's why I was vacated.

[00:20:45] Speaker 00:
But in terms of the rule, at least since 1996, it's been clear that the agency believes that the courts are included, right?

[00:20:59] Speaker 00:
Yes.

[00:21:00] Speaker 05:
You're not asserting lack of notice.

[00:21:01] Speaker 00:
There's no notice problem in that sense.

[00:21:03] Speaker 00:
You just think.

[00:21:04] Speaker 02:
Well, lack of notice in what sense?

[00:21:07] Speaker 02:
Yes, in 2003, they reissued the same policy that Judge Hodgson said was illegal.

[00:21:16] Speaker 02:
So that complicates the notice since 1996.

[00:21:20] Speaker 02:
We have an ALJ decision which was on appeal, and we had argued what that means, but we have an ALJ decision that said what they were doing was illegal.

[00:21:29] Speaker 00:
You have the agency's view in the manual, right?

[00:21:33] Speaker 00:
There's no doubt about that.

[00:21:34] Speaker 02:
Yes.

[00:21:35] Speaker 00:
And there's no doubt about the

[00:21:38] Speaker 00:
uh... cfr that says that an a l j's opinion is not presidential by itself writes it's not binding on the commission right so you knew that also so you know under any circumstance you know there's a risk that the commission would follow its manual rather than the a l j there is that risk but which theory uh... take your honor a a l j decision that was fully litigated for a program policy manual that

[00:22:07] Speaker 02:
This Secretary of Labor says, is it binding?

[00:22:09] Speaker 00:
This isn't a notice question.

[00:22:11] Speaker 00:
I understand.

[00:22:11] Speaker 00:
It's not a notice question.

[00:22:14] Speaker 02:
No, it's not a notice question, Your Honor.

[00:22:17] Speaker 02:
What we have here, though, is a confusion of any kind of notice because apparently this Secretary of Labor went form shopping.

[00:22:26] Speaker 04:
The fundamental question is the meaning of the regulation.

[00:22:30] Speaker 02:
Yes, it is the fundamental question.

[00:22:34] Speaker 04:
You say in your brief that actually only continuity testing is necessary for power cables and extension cords.

[00:22:46] Speaker 02:
The reason I said that, and of course the secretary is taking a position in this litigation that it is not, is that in the Hibbingtack and our case, their electrical expert said only continuity testing was required.

[00:22:59] Speaker 02:
And if you look at their policy, sometimes they require continuity and resistance, sometimes they take on various parts of the system, sometimes they just require resistance.

[00:23:09] Speaker 02:
It doesn't make sense, the standard doesn't make sense as they're trying to

[00:23:13] Speaker 02:
fit it to the system and fit it to anything that might be added to the system.

[00:23:18] Speaker 00:
But there's no reason that both of them couldn't be done on an extension cord, right?

[00:23:23] Speaker 00:
Both resistance and continuity can be done on an extension cord.

[00:23:26] Speaker 02:
Well, you could do it.

[00:23:28] Speaker 02:
I'm not sure how you do.

[00:23:32] Speaker 00:
Well, you put a meter at the end, and you see how it's changed.

[00:23:40] Speaker 02:
You do and you don't, because the standard says you're supposed to test the system, not individual components of the system.

[00:23:46] Speaker 00:
Fair enough.

[00:23:47] Speaker 00:
So then you test the system overall?

[00:23:50] Speaker 02:
It's a complicated thing to test an overall grounding system.

[00:23:53] Speaker 02:
That's why it's an annual test.

[00:23:55] Speaker 02:
It's not a weekly, daily test that the secretary's really proposing.

[00:24:01] Speaker 00:
OK.

[00:24:01] Speaker 00:
Further questions?

[00:24:02] Speaker 05:
The secretary was clear that you just had to do extension cords once a year?

[00:24:07] Speaker 02:
Well.

[00:24:07] Speaker 05:
What would prohibit that?

[00:24:11] Speaker 05:
the agency from taking that position, taking the position that they're covered, that they only need to be tested once a year?

[00:24:16] Speaker 02:
Then that would read out of the standard, the installation and modification.

[00:24:22] Speaker 05:
Or that insulin would first use or annually thereafter?

[00:24:25] Speaker 02:
Well, they could say that today, but tomorrow they could say, no, we want them tested every time you plug them in.

[00:24:36] Speaker 02:
Because what they're saying here

[00:24:41] Speaker 02:
is, quote, an interpretation, unquote, it is not binding.

[00:24:45] Speaker 02:
They can change it just like you change your shirt.

[00:24:50] Speaker 02:
And so what we're saying is you look at the rule and figure out what the rule says and see if it makes sense for extension cords.

[00:24:58] Speaker 02:
And we don't think it does.

[00:25:02] Speaker 02:
OK.

[00:25:02] Speaker 02:
Thank you.

[00:25:02] Speaker 02:
Thank you.

[00:25:20] Speaker 06:
Good morning.

[00:25:21] Speaker 06:
May it please the court, my name is Sarah Johnson and I represent the Secretary of Labor.

[00:25:28] Speaker 06:
This case is about an electoral standard that has the purpose of protecting minors from electric shock.

[00:25:33] Speaker 06:
and electrocution.

[00:25:34] Speaker 06:
And as you've been discussing, the interpretive question is whether the term grounding systems includes the equipment grounding conductors or ground wires in power and extension cords.

[00:25:46] Speaker 04:
Can we follow up the power tool hypothetical that's already engaged us?

[00:25:53] Speaker 04:
Is the Secretary saying that there is a

[00:25:59] Speaker 04:
material risk when I take an electric screwdriver and I connect it to an outlet without having checked the extension cord, which as with Judge Garland, turns out to be true for me, I always need it.

[00:26:20] Speaker 06:
Absolutely, Your Honor.

[00:26:23] Speaker 04:
That is very dangerous for me.

[00:26:24] Speaker 04:
Yeah, it's really dangerous for me.

[00:26:27] Speaker 06:
If the equipment is not grounded and the miner touches the metal encasing of the equipment, then the miner will be shocked.

[00:26:37] Speaker 04:
And what the testing does... So each time I do that, I should test it.

[00:26:46] Speaker 04:
If I want to survive, to put it more carefully, to keep my risks of injury reasonable.

[00:26:55] Speaker 06:
Well, the grounding system is there to protect the user.

[00:27:01] Speaker 06:
The testing requirement the purpose is to test at the beginning to make sure it's working initially if you repair it or so you don't you don't test the system I mean you to be extra safe you could test every time but what the standard requires is periodic testing and

[00:27:19] Speaker 04:
to make sure that the grounding system is functional so that... But is it an installation within the secretary's view of this regulation when each time I plug it in?

[00:27:34] Speaker 06:
The standard... What we're interpreting here is the term grounding system.

[00:27:39] Speaker 03:
Yes.

[00:27:40] Speaker 06:
And so this case is about the annual testing.

[00:27:43] Speaker 04:
And there are several... So you're saying at least

[00:27:49] Speaker 04:
For components, each active connection doesn't count as an installation.

[00:28:01] Speaker 06:
it's the first time that it's introduced in the mind.

[00:28:03] Speaker 06:
That's how MSHA is currently enforcing the standard.

[00:28:08] Speaker 04:
You drift off into this enforcing the standard.

[00:28:12] Speaker 04:
And I guess what that conjures up in my mind is the idea that you have written a standard, which at least potentially is very, very broad, and you give it some element of reasonableness by overwhelming under enforcement.

[00:28:34] Speaker 06:
Perhaps, would it be helpful to walk through, we were talking about, you were talking before about the components of the system and how building that picture in your mind.

[00:28:45] Speaker 06:
Yes.

[00:28:45] Speaker 06:
And there's one confusion that I'd like to clear up if I could.

[00:28:49] Speaker 06:
The conductor in the extension cord is an equipment grounding conductor rather than a grounding electrode conductor.

[00:28:57] Speaker 06:
And so maybe if I could trace the path of the system so that it's very clear what the system entails.

[00:29:06] Speaker 06:
So if you take, for example, the 480 volt welder, inside the welder, the ground wire would be attached to the metal casing of the welder.

[00:29:15] Speaker 06:
And then the ground wire runs through the power cord.

[00:29:18] Speaker 06:
And that ground wire through the power cord is an equipment grounding conductor.

[00:29:23] Speaker 06:
And you'll find that in the lip pan and declaration.

[00:29:27] Speaker 06:
at number 10.

[00:29:29] Speaker 06:
And then, at the end of the power cord, you have the plug and the ground prong, as you correctly understood.

[00:29:34] Speaker 06:
And when you're using an extension cord, that ground prong would plug into the extension cord, and then you have another round wire running through the extension cord.

[00:29:44] Speaker 06:
And that's also an equipment grounding conductor.

[00:29:46] Speaker 06:
And that's where- Wait, wait, wait, wait.

[00:29:50] Speaker 00:
So the equipment grounding conductor is not just the metal frame around the welder.

[00:29:57] Speaker 00:
It is also the wire inside the extension cord.

[00:30:03] Speaker 06:
That is correct.

[00:30:04] Speaker 00:
OK.

[00:30:05] Speaker 00:
What is the grounding electrode conductor then?

[00:30:07] Speaker 06:
So the grounding electrode conductor connects the equipment grounding conductor with the grounding electrode.

[00:30:12] Speaker 00:
Yes, I understand.

[00:30:14] Speaker 00:
But physically, what is it?

[00:30:14] Speaker 06:
Where that happens physically.

[00:30:16] Speaker 06:
So your extension cord would plug into the wall.

[00:30:19] Speaker 06:
On the back side of the outlet, you have another ground wire.

[00:30:22] Speaker 06:
That's also an equipment grounding conductor that runs to the circuit breaker or fuse box.

[00:30:27] Speaker 06:
And then at the circuit breaker fuse box, the equipment grounding conductor connects with the grounding electrode conductor.

[00:30:33] Speaker 00:
I see.

[00:30:33] Speaker 00:
So that's all at the bottom of the house, if we think about it that way.

[00:30:37] Speaker 06:
Yes.

[00:30:38] Speaker 06:
And then the grounding electrode runs to the grounding electrode, which is the rods.

[00:30:43] Speaker 06:
And the reason that the purpose requires interpreting the standard to include these equipment grounding connectors is that it's the circuit breaker or the fuse box that turns off the power to the equipment in the event of an electrical fault.

[00:30:57] Speaker 06:
So when the

[00:31:01] Speaker 06:
If the welder were to have a short or some sort of leakage of electricity in the equipment and the metal frame of the equipment became energized, the ground wire would send a signal all the way back to the circuit breaker to turn off the power source to the equipment.

[00:31:17] Speaker 06:
And so that's the mechanism that primarily protects the minors from shock.

[00:31:22] Speaker 00:
The inside wire in the court as being the equipment grounding conductor, that's in the declaration, I believe, isn't it?

[00:31:31] Speaker 06:
Yes, at number 10.

[00:31:32] Speaker 06:
And I think there was some confusion with the judge.

[00:31:36] Speaker 06:
The Judge Pais did call it a grounding electrode conductor, but he was referring to the declaration, which calls it an equipment grounding conductor.

[00:31:46] Speaker 00:
So, but to get back to the issue of... I'm sorry, I don't... I'm just... Number 10 says extension cords are grounded conductors because they are used to connect the metal frames or enclosures

[00:32:00] Speaker 00:
to the grounding electrode conductor.

[00:32:02] Speaker 00:
I see.

[00:32:03] Speaker 06:
Right.

[00:32:03] Speaker 06:
So if you go to the PPM, the definition of an equipment grounding conductor is to connect to the grounding electrode conductor.

[00:32:10] Speaker 00:
OK.

[00:32:11] Speaker 06:
So it seems rather circular, but that's what it is.

[00:32:13] Speaker 00:
No, no.

[00:32:13] Speaker 00:
It doesn't seem circular.

[00:32:14] Speaker 00:
It just depends on where you cut it off in the chain.

[00:32:17] Speaker 00:
Go ahead.

[00:32:18] Speaker 05:
Sorry.

[00:32:18] Speaker 05:
So as you come back to the regulation itself, which says you're supposed to test continuity and resistance,

[00:32:29] Speaker 05:
on grounding systems.

[00:32:31] Speaker 05:
And I guess each component of a grounding system is your position.

[00:32:35] Speaker 05:
What resistance is there to test in an extension cord or a power cord?

[00:32:42] Speaker 05:
Isn't the whole point that they don't have resistance?

[00:32:45] Speaker 05:
Power's supposed to travel through it?

[00:32:47] Speaker 06:
So the concept of continuity is that the current flows without interruption.

[00:32:52] Speaker 06:
And the concept of resistance is basically the speed with which the electricity flows back.

[00:32:57] Speaker 06:
And so you want very low resistance in these equipment grounding conductors and in your grounding electrode conductors so that the message returns quickly to the circuit breaker to turn off the power.

[00:33:07] Speaker 06:
So when you test with the ohm meter, you're testing, it'll tell you that

[00:33:12] Speaker 06:
the wire is continuous if you get a reading and then it will tell you how low the resistance is.

[00:33:19] Speaker 05:
And so you can actually have a problem in extension cords if they're not working that the resistance would

[00:33:24] Speaker 06:
that it would be too high.

[00:33:27] Speaker 06:
So what would happen if you had high resistance in the cord would be, it would take longer for that message to get back to the circuit breaker fuse box and so you could have lag time between when the equipment is energized through the electrical fault and when it turns off.

[00:33:43] Speaker 05:
I'm just curious, you only require records to be kept of resistance testing and not continuity.

[00:33:49] Speaker 05:
Is that just because

[00:33:51] Speaker 05:
Why is that?

[00:33:52] Speaker 06:
Because continuity is a yes-no question.

[00:33:54] Speaker 06:
It's like either it's continuous or it's not.

[00:33:56] Speaker 06:
And if you get a reading on resistance, then it would tell you that it's continuous.

[00:34:01] Speaker 05:
So it would just show how fast or slow it's moving through.

[00:34:06] Speaker 05:
Exactly.

[00:34:07] Speaker 06:
And you also asked whether we test both continuity and resistance on all of the elements.

[00:34:13] Speaker 06:
And we test, we require testing of continuity and resistance on both kinds of conductors, the equipment grounding conductors and the grounding electrode conductors.

[00:34:22] Speaker 06:
The grounding electrode or the rods that are buried in the earth, you only test resistance.

[00:34:26] Speaker 06:
And that's because it's sort of the destination and there's no continuity to be tested, just resistance.

[00:34:33] Speaker 04:
Okay, and you require a record of the resistance testing.

[00:34:39] Speaker 04:
You don't require a record of the continuity testing, even though it's yes or no.

[00:34:44] Speaker 04:
You don't require a record that it be done, or what?

[00:34:48] Speaker 04:
So you don't require a record of the result?

[00:34:51] Speaker 06:
Well, if you have a result of resistance measured in ohms.

[00:34:55] Speaker 04:
I understand that.

[00:34:56] Speaker 04:
But what about the not requiring a record, as seems to be the case, for the continuity testing?

[00:35:03] Speaker 04:
That's a misreading of the PPM.

[00:35:06] Speaker 04:
I'm not sure.

[00:35:08] Speaker 06:
So when you do a continuity test, if there is resistance, it would tell you it's continuous.

[00:35:16] Speaker 06:
So if you're recording the resistance in ohms, you wouldn't need to say, yes, continuous, and whatever the value is in ohms.

[00:35:23] Speaker 04:
So it's encompassed in the resistance testing.

[00:35:26] Speaker 05:
Yes.

[00:35:27] Speaker 05:
So if it doesn't run to it, then there wouldn't be any, because you wouldn't record any, resistance recording wouldn't happen because the electricity wouldn't get in there.

[00:35:34] Speaker 00:
You would get an error.

[00:35:35] Speaker 00:
Right, okay.

[00:35:35] Speaker 00:
And problems in continuity are caused by breaks, is that right, or other things?

[00:35:42] Speaker 06:
Yeah, so the reason that it's so important to test the equipment grounding conductors is because they're subject to things like vibration, flexing, and corrosive environments.

[00:35:52] Speaker 06:
So with a cord, you have all these environmental stressors.

[00:35:55] Speaker 06:
And so if you had some sort of a break in the cord or weakness, that could interrupt the continuity.

[00:36:02] Speaker 00:
And what affects the resistance?

[00:36:07] Speaker 06:
That might be reaching the limits of my technical knowledge.

[00:36:12] Speaker 00:
You've done very well so far.

[00:36:14] Speaker 06:
I'm not a sparky, but I aspire for purposes of this case.

[00:36:18] Speaker 04:
What about installation?

[00:36:20] Speaker 04:
Because the regulation does require testing on installation.

[00:36:29] Speaker 04:
And where is it that someone mystified by this rule goes to find out what counts as installation?

[00:36:36] Speaker 06:
That's not addressed directly in the policy guidance.

[00:36:43] Speaker 06:
But to read grounding system, we don't address the issue of installation directly in the guidance.

[00:36:52] Speaker 04:
Isn't it a problem if you have something where installation, in one context,

[00:37:01] Speaker 04:
clearly means a certain time when you do it.

[00:37:05] Speaker 04:
And for another context, just attaching an extension cord to ends makes no sense.

[00:37:21] Speaker 04:
Isn't the reader likely to be somewhat mystified as to what the actual coverage is at that point?

[00:37:31] Speaker 06:
So you're suggesting MTA should issue some guidance?

[00:37:35] Speaker 04:
Maybe even have it in the regulation.

[00:37:40] Speaker 04:
I know you like guidance more than regulations.

[00:37:44] Speaker 04:
You understand?

[00:37:44] Speaker 04:
They don't find you.

[00:37:45] Speaker 06:
I appreciate your concern.

[00:37:49] Speaker 06:
And I guess the question in this case is whether these citations should be affirmed and whether Tilden had enough notice.

[00:37:55] Speaker 06:
And there was some discussion about notice previously.

[00:37:58] Speaker 04:
It's also needed.

[00:38:00] Speaker 04:
And if the meaning of installation seems to mean one thing, one thing which is arguably inconsistent with applying the words of the regulation to an extension cord that's continually connected and disconnected, then what is the reader to do?

[00:38:26] Speaker 06:
I mean, all regulations contain some, or I mean both regulations contain some ambiguities, and so these sorts of things are sorted out through the case law, like we're... No, but this isn't ambiguity.

[00:38:36] Speaker 05:
I think what they're saying is, look, I'm trying to figure out what grounding systems are.

[00:38:40] Speaker 05:
They have to be something that can be installed.

[00:38:42] Speaker 05:
and test it upon installation.

[00:38:46] Speaker 05:
And when you start talking about extension cords, which is the joy of an extension cord is it can plug into lots of things, eight different things during a day, and eight different wall outlets during a day.

[00:38:56] Speaker 05:
But surely you don't mean that every time you plug in an extension cord, you've installed a grounding system.

[00:39:05] Speaker 06:
But the regulation also couldn't mean that critical components of the grounding system need not be tested.

[00:39:11] Speaker 05:
So you've got a problem with the regulation.

[00:39:13] Speaker 06:
So we can read insulation in a way that is consistent with testing cables and cords.

[00:39:22] Speaker 06:
Because as you said, it's the initial testing.

[00:39:26] Speaker 05:
And so it's also every modification.

[00:39:29] Speaker 05:
So if I take an extension cord, plug it into the drill, plug it into the outlet, you'd say, fine, let's test it right then.

[00:39:35] Speaker 05:
That's the first time you're doing it.

[00:39:37] Speaker 05:
And then an hour later, I go, done with the power drill.

[00:39:40] Speaker 05:
Now I'm plugging it into the lights.

[00:39:43] Speaker 05:
Is that a new installation or a modification?

[00:39:45] Speaker 05:
Because now it's an entirely different grounding system.

[00:39:47] Speaker 05:
It's the lights.

[00:39:49] Speaker 05:
grounding system as opposed to the drill's grounding system.

[00:39:51] Speaker 05:
And then the next hour it could be the screwdriver's grounding system.

[00:39:58] Speaker 06:
There could be a more expansive reading of those two terms, installation and modification, or narrower ones.

[00:40:04] Speaker 06:
And I mean, in this case, we're talking about the annual testing.

[00:40:08] Speaker 05:
No, but we're interpreting the regulation to see if this is

[00:40:13] Speaker 05:
consistent, because you can't get deference to an interpretation that is not consistent with the regulatory language.

[00:40:20] Speaker 05:
And if the first time I plug in the drill, that's an installation, I don't understand why when I plug in the lights, the first time I plug in the lights with the same extension cord, that's not the installation of yet a new grounding system.

[00:40:31] Speaker 06:
Right, but if there were multiple ways to read installation and modification, and some of those ways were consistent with the idea of a grounding system and the overriding purpose to protect miners from electric shock and electrocution, then we could

[00:40:47] Speaker 06:
uphold the standard and the secretary's interpretation of it is reasonable because those terms do not absolutely preclude applying the term grounding systems.

[00:40:59] Speaker 05:
How do you protect minor safety if you don't require it to be tested when it changes from plugging into the drill to the lights?

[00:41:06] Speaker 05:
Don't you have a whole new risk now of you need to test that new grounding system now the extension cord is working on lights?

[00:41:13] Speaker 06:
So the risks, the greatest risks, are not to those one plug meeting with another, but the damage that can happen to the court.

[00:41:23] Speaker 06:
And Emsha need not address, I mean, in the recent American Cole case that this court decided,

[00:41:33] Speaker 06:
That agency doesn't have to do everything to do something, and here EFSA has been.

[00:41:38] Speaker 05:
But you have to have a coherent definition of installation.

[00:41:41] Speaker 05:
And I just don't understand why it's not a new installation when it's a whole new grounding system.

[00:41:46] Speaker 05:
And the exact same risk that you were worried about with the power drill exists with the lights, doesn't it?

[00:41:51] Speaker 06:
So it could be that we interpret the standard to require testing every time cables are plugged and unplugged.

[00:42:03] Speaker 04:
Isn't it basically the case that you like to write the regulations very broadly and then make common sense of it in the enforcement, a certain amount of common sense anyway, by giving varying interpretations depending upon context?

[00:42:24] Speaker 06:
Well, I mean, this was a standard about prior to the time EMSA was even an agency by a committee that included representation from the mining community, from labor, from the government.

[00:42:37] Speaker 04:
That doesn't insulate you from a question of coherence.

[00:42:43] Speaker 05:
Which means you've had 20 years to figure out what insulation means with respect to extension courts.

[00:42:50] Speaker 05:
At least 20.

[00:42:52] Speaker 00:
I take it that your answer to the risk question is that the risk is as you previously described it just to us.

[00:42:59] Speaker 00:
That is, you coil these cords a lot.

[00:43:01] Speaker 00:
The risk is lack of continuity or lack of resistance.

[00:43:06] Speaker 00:
And that testing once a year is sufficient for that purpose and that that risk doesn't change whether it's plugged into a light or plugged into a drill.

[00:43:16] Speaker 00:
That's a different, the kind of risk we're talking about is not the, that you're worried about, is not what happens when it's plugged in.

[00:43:22] Speaker 00:
The risk is what happens to the cord, to the internal wire itself.

[00:43:27] Speaker 05:
That's correct, and to give another practical example.

[00:43:31] Speaker 05:
system the cords part of it and so the fact that there was a good connection between the three prong plug on the drill and the three holes on the extension cord and so that was a nice tight good effective grounding system doesn't tell me at all that when I put take the lighting system which maybe has an older plug and doesn't plug in quite as tightly to the extension cord that that grounding system is going to have the continuity and resistance that you want.

[00:43:58] Speaker 05:
I mean, the system is going to change every time the extension cord changes what it's plugged into, isn't it?

[00:44:06] Speaker 06:
When MSHA issued the 1994 PPL, it had reviewed data on accidents, injuries, and fatalities related to this standard.

[00:44:18] Speaker 06:
And this was the policy that MSHA put forward, I think, because of the reasons that Chief Judge Garland was mentioning.

[00:44:31] Speaker 06:
The system is tested in pieces.

[00:44:34] Speaker 06:
And so what EMCHA is doing here is ensuring that each of these pieces has integrity that is tested initially upon modification.

[00:44:46] Speaker 06:
To give another practical example of modification, sometimes

[00:44:49] Speaker 06:
extension cords are rewired.

[00:44:51] Speaker 06:
And there have been instances where a cord was rewired incorrectly, not tested after modification.

[00:45:02] Speaker 06:
The female head of the cord was replaced, and it was wired incorrectly, not tested, and then that modification led to a fatality.

[00:45:11] Speaker 06:
So modification isn't just plugging and unplugging, but actually can be modifying the cords and cables themselves.

[00:45:19] Speaker 05:
So in the assumption that the lights or the power drill are being tested when they first come to the mine and then annually thereafter and the cords are doing the same thing, are you saying then that as long as those things, each piece is getting tested upon installation and annually, the risk doesn't come from how good the connection is between the extension cord and the equipment, it only comes from the wiring within either the piece of equipment or the extension cord, so I don't need to worry about the fact that

[00:45:48] Speaker 05:
how it plugged in, whether it was a good connection when it plugged into the drill might not be so good when it plugs into the very old lighting system?

[00:45:55] Speaker 06:
I mean, that's the greatest risk, and that's the risk that EMSHA has been addressing through its existing enforcement policy, although, you know, the Secretary could take a different interpretation in the future as to installation and modification, and the Court would have to review whether that was a reasonable interpretation of those terms.

[00:46:15] Speaker 04:
Except that there is no clear interpretation of installation, is that correct?

[00:46:23] Speaker 04:
I thought you said that.

[00:46:25] Speaker 06:
In MCHA's policy, there is not.

[00:46:26] Speaker 06:
Right.

[00:46:27] Speaker 06:
But in this case, you have our briefs where we've represented to the court the secretary's interpretation of installation.

[00:46:34] Speaker 00:
And the same representation was made to the ALJ and to the commission, correct?

[00:46:37] Speaker 00:
Yes.

[00:46:39] Speaker 00:
Is there a definition of modification?

[00:46:43] Speaker 05:
In the policy?

[00:46:45] Speaker 00:
in the regulations.

[00:46:46] Speaker 05:
Somewhere, anywhere.

[00:46:47] Speaker 00:
No, in the regulations.

[00:46:48] Speaker 00:
No, there's not.

[00:46:49] Speaker 00:
There's no definition of repair either.

[00:46:51] Speaker 06:
No.

[00:46:52] Speaker 00:
Right.

[00:46:52] Speaker 00:
So I suppose you could make a void for vagueness argument about this regulation, but it hasn't been made.

[00:46:59] Speaker 00:
Each of these words can be attacked.

[00:47:02] Speaker 06:
This is what happens in adjudication all the time under the Mine Act.

[00:47:07] Speaker 04:
That certainly isn't the exact contention.

[00:47:09] Speaker 04:
The contention is not vagueness, blurriness at the edges.

[00:47:13] Speaker 04:
The contention is incoherence between two elements of the rule.

[00:47:23] Speaker 04:
at least assuming a particular definition of installation.

[00:47:29] Speaker 06:
And we would urge the court to resolve any inconsistency in favor of the overriding purpose of the standard, which is to protect minor safety and health.

[00:47:39] Speaker 06:
If these cables and cords aren't tested, there's a very important component of the grounding system

[00:47:46] Speaker 06:
where defects would not be revealed, and it's the component of the grounding system that is most subject to the vibration, flexing, and corrosive environments that can corrupt those components, and so it's where there's more risk.

[00:48:04] Speaker 06:
Are there any other questions about that?

[00:48:08] Speaker 06:
no okay i'd urge the court to you all that batting systems include the ground conductors and cables and cords and from the citations to have any time

[00:48:32] Speaker 02:
goes on the grounding conductor, it does not go back to a circuit breaker and kick the circuit breaker, it goes to ground, which may be a ground bed, may be

[00:48:40] Speaker 02:
a beam that connects into the ground.

[00:48:44] Speaker 02:
So the solicitor, I believe, was wrong on that.

[00:48:47] Speaker 02:
Second, in terms of risk, if you look at the citations involved in this case, you read the heavy pack night case.

[00:48:53] Speaker 02:
All of those citations were marked as what is not significant and substantial.

[00:48:58] Speaker 02:
And I know some of you have had amateur cases before.

[00:49:04] Speaker 02:
But if you look at page 34 of the appendix, the inspector there, Mr. Lipanin, gave an evaluation and he said the injury or illness is unlikely.

[00:49:16] Speaker 02:
And in fact, in his two, the one that was vacated and it was in 2008 issued and vacated in 2009, they're all marked as unlikely.

[00:49:30] Speaker 02:
And yes, they are marked as fatal.

[00:49:33] Speaker 00:
But yes, they're marked as fatal, but unlikely to be fatal.

[00:49:36] Speaker 02:
If an illness or injury occurred, they mark it.

[00:49:42] Speaker 02:
They say it would be fatal.

[00:49:43] Speaker 02:
But frankly, if you're talking about 110 volts, I don't.

[00:49:47] Speaker 02:
That's Emch's default on all electrical citations.

[00:49:50] Speaker 02:
But he marked it as unlikely so that the hazard isn't particularly great and there isn't a material risk.

[00:49:57] Speaker 00:
But it says that if these untested electrical components were shorted and contact was made, a shock or burn could occur, right?

[00:50:05] Speaker 00:
That's what he says.

[00:50:07] Speaker 01:
Yes, that's what he says.

[00:50:09] Speaker 02:
And he says that's unlikely.

[00:50:11] Speaker 00:
So if we're talking about- Maybe it's unlikely that there's- There would be an injury or illness.

[00:50:17] Speaker 00:
Injury or illness, if you're actually shot or it's unlikely that a particular court at a particular time will be shorted, which of the two is he talking about?

[00:50:33] Speaker 02:
He is talking, as I understand this form, that an injury is unlikely.

[00:50:40] Speaker 00:
Well, there could be two reasons.

[00:50:41] Speaker 00:
One, because it's just a shock, which, personally, I just don't understand.

[00:50:47] Speaker 00:
A shock is unlikely, or?

[00:50:48] Speaker 00:
Or that it's unlikely to be shorted.

[00:50:50] Speaker 00:
We don't know the answer to that.

[00:50:52] Speaker 02:
Either one.

[00:50:57] Speaker 02:
OK.

[00:51:00] Speaker 02:
We believe that we're not talking about it.

[00:51:02] Speaker 02:
They're not chalking this up as a significant risk.

[00:51:06] Speaker 02:
It doesn't de-energize the equipment that goes to ground.

[00:51:11] Speaker 02:
In fact, the equipment remains energized.

[00:51:13] Speaker 02:
The thing is, if it goes to ground, what it means is if I touch that equipment, I won't get shocked.

[00:51:21] Speaker 02:
And that's all it means.

[00:51:22] Speaker 02:
It doesn't mean that

[00:51:29] Speaker 02:
It will kick the breaker.

[00:51:30] Speaker 02:
The breakers are set for either overcurrent or short-circuit protection.

[00:51:34] Speaker 00:
Why does it matter whether it kicks the breaker?

[00:51:35] Speaker 00:
We're concerned about the miner's health, not whether the equipment turns off.

[00:51:42] Speaker 02:
Well, if the equipment goes off, there's obviously less risk.

[00:51:46] Speaker 02:
The other thing I want to point out.

[00:51:48] Speaker 05:
I'm sorry.

[00:51:49] Speaker 05:
I'm sorry.

[00:51:50] Speaker 05:
I had just one.

[00:51:51] Speaker 02:
If the equipment is de-energized.

[00:51:54] Speaker 05:
Go ahead and make the point you want, and then I have one.

[00:51:56] Speaker 02:
The point I want to make also is we've talked about resistance here.

[00:52:01] Speaker 02:
And of course, there's nothing in this standard that says what's acceptable resistance for grounding systems.

[00:52:08] Speaker 02:
I will tell you that it is my understanding the grounding resistance that they think or talk about for a system is approximately 25 ohms.

[00:52:19] Speaker 02:
The Wolf Run case we cited in our brief may well talk about that.

[00:52:24] Speaker 02:
There is no – and I'm not aware and this secretary has not offered any – what is an acceptable resistance for an extension for it, because it, frankly, doesn't make sense that that one small component – you're looking at the whole system.

[00:52:39] Speaker 02:
And the whole system has got a resistance of somewhere probably 25 ohms or less, which I'm not.

[00:52:47] Speaker 02:
I lasted ohms in high school.

[00:52:51] Speaker 02:
But it's not very much over a whole system, particularly one like any of these systems that involve

[00:52:59] Speaker 01:
as much as high voltage of 4160, so 4160 volts.

[00:53:04] Speaker 01:
We're only talking, this is not the issue here.

[00:53:08] Speaker 05:
Before you sit down on JA34 and 36 where the citations are,

[00:53:15] Speaker 05:
It says on 34 and box 17 that, I guess, I have no idea what a GFCI pigtail is, but they were installed on the emergency lighting.

[00:53:26] Speaker 05:
This action by the operator terminates the citation.

[00:53:30] Speaker 05:
Got the same language on 36.

[00:53:31] Speaker 05:
That action by the operator terminates the citation.

[00:53:35] Speaker 05:
Did you have to pay a fine or did you have to?

[00:53:39] Speaker 05:
Is there any continuing effect of these citations?

[00:53:42] Speaker 02:
OK.

[00:53:42] Speaker 02:
Here's the way the system works, Your Honor, and I apologize.

[00:53:46] Speaker 02:
When you are issued the citation, they give you, as they did in page 34, a certain amount of time to obey it.

[00:53:52] Speaker 02:
In this case, they gave us about three hours, two hours and 15 minutes.

[00:53:58] Speaker 02:
You have to obey it.

[00:54:00] Speaker 02:
And if you don't within that time, as long as the time is reasonable, you may get a withdrawal order requiring you to withdraw from that area of the mine.

[00:54:09] Speaker 02:
So there's abatement is one thing.

[00:54:11] Speaker 02:
But we also got civil penalties for these citations, which are assessed at a later time.

[00:54:19] Speaker 02:
When an emcee inspector sees what he believes is a violation,

[00:54:25] Speaker 02:
In metal and nonmetal, they usually issue the citation the next day.

[00:54:28] Speaker 02:
In coal, they issue it the same day.

[00:54:31] Speaker 02:
They issue a citation.

[00:54:32] Speaker 02:
They say, you have to abate it.

[00:54:33] Speaker 02:
And you do.

[00:54:34] Speaker 02:
OK.

[00:54:34] Speaker 05:
So that's what determines the citation, is you do the abatement?

[00:54:38] Speaker 02:
Yes.

[00:54:38] Speaker 02:
And in this case, in the case of the extension cord and the light, they did not have to do a continuity test.

[00:54:44] Speaker 02:
They just had to put what is it, GFCI, ground fault interrupter on it.

[00:54:50] Speaker 05:
Well, the other one says continuity and resistance ground testing were done.

[00:54:53] Speaker 05:
It received its annual testing.

[00:54:55] Speaker 05:
So what is the civil penalty for these citations?

[00:54:57] Speaker 02:
I forget what the civil penalties were in this case.

[00:55:00] Speaker 02:
But they're in the judge's decision.

[00:55:02] Speaker 02:
But there is a civil penalty.

[00:55:03] Speaker 02:
It's graduated.

[00:55:04] Speaker 02:
It depends on certain criteria, including size.

[00:55:08] Speaker 02:
Actually, on the light one, on page 34 of the appendix,

[00:55:17] Speaker 02:
abated by installing the GFCI, and the one on the welder was involved was abated by doing continuity and resistance testing.

[00:55:28] Speaker 05:
But your client is on the line still to pay a penalty for both these citations?

[00:55:32] Speaker 02:
Yes, we had to pay a penalty.

[00:55:35] Speaker 00:
The penalty was $1,000.

[00:55:36] Speaker 00:
Yeah.

[00:55:37] Speaker 02:
I will say this brings up a point, and I will sit down after that.

[00:55:42] Speaker 02:
The fact that you have to abate.

[00:55:44] Speaker 00:
So now we're outside of anything that's been argued by either side before about the abatement.

[00:55:50] Speaker 00:
So I'd like to keep the rebuttal to rebutting.

[00:55:53] Speaker 02:
I want to go back to something that Judge Williams was inquiring of the solicitor.

[00:55:58] Speaker 02:
The fact that how do you figure out what all this means?

[00:56:02] Speaker 02:
Well, here's the thing.

[00:56:03] Speaker 02:
You're a mine operator, and you've got to comply.

[00:56:07] Speaker 02:
My experience is they want to comply, just tell us what the rules are.

[00:56:11] Speaker 02:
And in this case, in this particular rule,

[00:56:16] Speaker 02:
I think what this morning has brought to the bear that even with all the policy, it's unclear what all the rules are.

[00:56:22] Speaker 00:
Well, it's quite clear that their rule is, since 1996, that the courts have to be examined annually.

[00:56:32] Speaker 00:
So when you say you want, all you want to know is what the rule is and you're happy to comply, that's not exactly right.

[00:56:37] Speaker 00:
You want this particular rule overturned, right?

[00:56:41] Speaker 02:
Yes, I do, Your Honor, because I think it's a bad rule.

[00:56:43] Speaker 00:
I understand.

[00:56:44] Speaker 00:
That's different than all I want to know is what the rule is.

[00:56:47] Speaker 00:
That's a different position.

[00:56:49] Speaker 00:
Because if that's your position, this case will be really easy.

[00:56:55] Speaker 02:
No.

[00:56:55] Speaker 02:
This standard, as it applied here, is improperly applied because it doesn't apply to the subject matter, and it should have done rulemaking.

[00:57:03] Speaker 00:
That's what I thought your position was.

[00:57:04] Speaker 00:
Yes.

[00:57:04] Speaker 00:
Thank you.

[00:57:05] Speaker 00:
All right.

[00:57:05] Speaker 00:
We'll take the matter under submission.