[00:00:01] Speaker 04:
Case number 18-1048, Matt Money, LLC Petitioner, versus federal money from the AFReview Commission at ELLE.

[00:00:09] Speaker 00:
Mr. McHugh for the petitioner, Ms.

[00:00:10] Speaker 00:
Dunbar for the respondent.

[00:00:21] Speaker 01:
May please the court counsel.

[00:00:23] Speaker 01:
My name is James Q and I represent mock mining LLC in this matter.

[00:00:28] Speaker 01:
And this case involves the application of what we'll call the record keeping rule, which is 30 CFR 75 363 B and that rule requires that a record should be made of any hazardous condition and any violation of the non mandatory health and safety standards found by the mine examiner.

[00:00:47] Speaker 01:
In this case, Mock contends that this is a fairly simple rule.

[00:00:52] Speaker 01:
In this case, the ALJ found that the examiner should have noted, in addition to what he did note in, and if you want to follow along on the actual exam record, it's A529, as you can find the exam record.

[00:01:05] Speaker 01:
The ALJ found that the examiner should have noted six areas where the coal accumulations along this slope belt were touching the belt and rollers.

[00:01:17] Speaker 01:
The problem is, is that the ALJ also concluded that the examiner in this case did not observe the conditions.

[00:01:26] Speaker 02:
And this created some of... Is that really a fair description of what the ALJ found?

[00:01:33] Speaker 02:
I mean, when I read this ALJ decision, I actually thought that it was probably one of the best, if not the best, ALJ decisions I've ever read.

[00:01:44] Speaker 02:
as far as its thoroughness and description of the law, prose, everything else.

[00:01:54] Speaker 02:
And it seems to be that the ALJ said there's no way he shouldn't have observed it if he didn't observe it because there was a plethora of cold deaths.

[00:02:12] Speaker 01:
Your Honor, in response to that, I would just note the Court's attention to essay 25, which is page 25 of the underlying decision.

[00:02:21] Speaker 01:
And there the Court says that I have found that the Secretary established that the accumulations had accrued over one shift.

[00:02:27] Speaker 01:
And then Adam's examination from a moving vehicle precluded him from observing the accumulations and ignition sources on the far side of the belt.

[00:02:36] Speaker 01:
So the ALJ did, in fact, find that examiner Adams testified truthfully that he did not see these conditions.

[00:02:47] Speaker 01:
So this created a problem.

[00:02:49] Speaker 02:
And apparently, recognizing the logical disconnect that the ALJ... But he also says at the end of the very next paragraph,

[00:02:57] Speaker 02:
In these circumstances, I find the respondent's examiner was highly negligent in failing to properly document the nature and location of the numerous accumulation hazards and the corrective action taken.

[00:03:13] Speaker 02:
And earlier in his opinion, he said that mine operators are strictly liable for violations that occur in that they don't get an out by saying that they

[00:03:27] Speaker 02:
you know, they didn't know about the violation.

[00:03:31] Speaker 02:
So taking all of that together, isn't that the finding there on page 25 that

[00:03:42] Speaker 02:
The examiner either knew or he definitely should have known if he had been doing his job properly.

[00:03:48] Speaker 01:
Your Honor, that's what the Commission found and that's how they tried to repair the damage that was caused by the ALJ's decision because they had to deal with this logical disconnect because the regulation itself says that a record shall be made of violations and hazards that are found.

[00:04:06] Speaker 01:
And as I was getting prepared for this case, I noticed that this court here did at least interpret 75-363 in national mining versus amsha, 116 Fed 3rd, 520.

[00:04:24] Speaker 01:
And this court equated it with discover.

[00:04:27] Speaker 02:
Is this in your brief?

[00:04:29] Speaker 01:
I found that as I was preparing for that case is not in the brief, Your Honor.

[00:04:34] Speaker 03:
Is this argument that you're making in the blue brief?

[00:04:39] Speaker 03:
You said in your opening brief that your client's inspector didn't observe these conditions, but that was in support of a factual argument that the conditions didn't exist at the time of his inspection.

[00:04:57] Speaker 03:
I didn't see a separate legal argument that the record-keeping regulation applies only to what you actually see as opposed to what you should have seen.

[00:05:09] Speaker 01:
Well, Your Honor, in this case, we believe it is fairly raised, and we believe it's fairly raised because it's... Would you point to where?

[00:05:18] Speaker 01:
Yes, Your Honor.

[00:05:19] Speaker 04:
The dissent raises this argument, right?

[00:05:22] Speaker 04:
The dissenter.

[00:05:23] Speaker 01:
The dissenter does, Judge Alphen.

[00:05:26] Speaker 04:
And I found, I did find this in your reply brief, but Judge Katz is asking where it is in the blue brief.

[00:05:32] Speaker 04:
You want to show us?

[00:05:33] Speaker 03:
I mean, you say at page 19, the examiner did not observe at the time of the exam any of the individual areas.

[00:05:44] Speaker 03:
That's the closest I could find, but it was, as I said, all in service of the factual argument that

[00:05:52] Speaker 03:
the conditions didn't exist at the time?

[00:05:56] Speaker 01:
Well, Your Honor, in this case, we have maintained from the opening statement to the present that that examiner did not find these conditions.

[00:06:07] Speaker 01:
And that has been found to be the case from the opening statement to the present.

[00:06:13] Speaker 01:
that the examiner did not find these conditions.

[00:06:16] Speaker 01:
And we believe it's fairly included in the factual portion of our brief and the portion of our brief that talks about the fact that we did not violate 75363b.

[00:06:31] Speaker 01:
In this court here in July of last year when you decided to consult case, the court said that it would take up errors that are fairly included or intrinsically related, I can't remember the exact words, to the elements.

[00:06:48] Speaker 01:
I mean, this is a legal question on the elements of the offense.

[00:06:51] Speaker 01:
Well, was this raised before the Commission?

[00:06:55] Speaker 01:
It was raised before the Commission in that we contended that Mr. Adams did not observe these conditions.

[00:07:03] Speaker 02:
I understand that it's the same problem and it's the same forfeiture issue.

[00:07:09] Speaker 01:
I would say at page three of the petition for discretionary review that the regulation does not require more than what he wrote for what he observed.

[00:07:18] Speaker 01:
It requires him to write what he saw.

[00:07:20] Speaker 01:
Page 19, Adams did not see the belt rubbing of the PDR.

[00:07:29] Speaker 02:
Is this petition for discretionary review in your appendix?

[00:07:33] Speaker 01:
The petition for discretionary review?

[00:07:35] Speaker 01:
It is not, Your Honor.

[00:07:37] Speaker 01:
It is not.

[00:07:42] Speaker 01:
And facially, both the underlying judge and the commission were interpreting 363 throughout the opinion.

[00:07:52] Speaker 01:
So we think that this would fall under a situation like the court found in the Consul case, where it's inextricably intertwined.

[00:08:02] Speaker 01:
In addition, what happened here is that in the commission, Mock argued that they were confusing the record-keeping violation, which has one requirement, with the exam requirements under 360A1 and 362.

[00:08:21] Speaker 01:
And that's also mentioned in the decision.

[00:08:23] Speaker 01:
And those, unlike the record keeping violation, those do have an adequacy provision involved in them.

[00:08:34] Speaker 01:
So what the commission did here was that

[00:08:46] Speaker 01:
They created this new rule and it superimposed this adequacy requirement to basically deal with what the judge had found, but this was not the secretary's position below.

[00:08:57] Speaker 01:
And we all know how deference works.

[00:09:00] Speaker 01:
It's based on what the position of the secretary is.

[00:09:02] Speaker 01:
The secretary's position was that the six areas had to be noted because they were present.

[00:09:09] Speaker 01:
This was also not the inspector's position.

[00:09:11] Speaker 01:
As we pointed out, the inspector specifically noted that he was not alleging an inadequate examination.

[00:09:20] Speaker 01:
He was only alleging an inadequate record.

[00:09:24] Speaker 01:
And it's contrary to the regulation itself as a matter of law.

[00:09:29] Speaker 01:
And what happened was is the commission created this new rule that says that the adequacy requirement for the examination is superimposed on the record-keeping violation, but it's the first time this rule has ever been announced.

[00:09:49] Speaker 02:
That we assume for the moment that.

[00:09:53] Speaker 02:
The examiner.

[00:09:55] Speaker 02:
Only saw what you contend that he saw.

[00:09:59] Speaker 02:
Still, what was written down was slope needs cleaned.

[00:10:04] Speaker 02:
Cleaning in progress.

[00:10:07] Speaker 02:
Which Adams himself, the examiner himself testified meant that the entire slope needed cleaning.

[00:10:17] Speaker 02:
How is that?

[00:10:19] Speaker 02:
even taking that on its face adequate.

[00:10:23] Speaker 01:
It's adequate, Your Honor, because it's long-standing practice.

[00:10:26] Speaker 01:
Mr. Adams said he'd been doing it since he got there, I believe, in 2007, and the Court has several of the exam records that demonstrate that this has been... I mean, why does his practice establish when dealing with what this regulation requires?

[00:10:40] Speaker 02:
And that mean that that slope belt itself is like, what is it, like 3600 feet long?

[00:10:46] Speaker 02:
Yes, your honor.

[00:10:47] Speaker 02:
And he so how is saying that that belt needs clean?

[00:10:51] Speaker 02:
without identifying anywhere specifically along that 3,600 feet that it particularly needs cleaning.

[00:11:00] Speaker 02:
How is that an adequate report?

[00:11:03] Speaker 01:
The reason it's adequate, Your Honor, is because as Mr. Adams testified and as the examiner or the inspector, also Mr. Reynolds, agreed that the entire belt did need cleaning.

[00:11:13] Speaker 01:
What had happened is, as the Court knows, due to a washback phenomenon, they were mining in a wet panel.

[00:11:20] Speaker 01:
as water would get on the belt, the belt's seven foot wide, but some of the coal would come off the edges.

[00:11:27] Speaker 01:
So Mock had to assign additional men to, and they had 10 there on the day of the citation.

[00:11:34] Speaker 01:
And so it truly was some accumulations throughout the entire slope belt.

[00:11:39] Speaker 01:
And everyone knew that it was along the entire slope belt.

[00:11:42] Speaker 01:
Even if you read the transcript, there's a,

[00:11:47] Speaker 01:
colloquy between Mr. Pence and the inspector where they go back and forth about, well, you know, if it had been like this but not touching the belt, would you have written the citation?

[00:12:00] Speaker 01:
And, you know, they never, he never really got the final answer on that, but you can tell from reading the colloquy that Mr. Reynolds agreed that the accumulations did span the entire belt.

[00:12:12] Speaker 03:
And again, Mr. Which I assume is a fairly regular

[00:12:16] Speaker 03:
The belts need cleaning in the ordinary course.

[00:12:22] Speaker 03:
So just to say the belt needs cleaning wouldn't really convey the seriousness of the six areas of 100 feet or something where there was friction, it was hot to the touch.

[00:12:38] Speaker 03:
It seemed like there was a pretty acute problem in some very specific areas and none of that was conveyed.

[00:12:46] Speaker 01:
Well, I'd answer that two ways, Your Honor.

[00:12:49] Speaker 01:
First of all, those six areas, again, the testimony was, and both the commission and the ALJ, as I recall, found that Mr. Adams did not see those six areas.

[00:13:00] Speaker 01:
They were on the offside of the belt.

[00:13:02] Speaker 01:
So he didn't see them.

[00:13:03] Speaker 01:
And he was in a rubber tire ride, which is perfectly legal, during his exam.

[00:13:08] Speaker 01:
And so he didn't see those, so he did not note those.

[00:13:16] Speaker 01:
However, as far as this belt goes, there were accumulations along the entire belt due to the situation.

[00:13:25] Speaker 01:
I mean, Mr. Adams had to examine, I believe, 11 different belts this morning at the end of his shift, during the pre-shift for the following group of miners to come on.

[00:13:36] Speaker 01:
And there were accumulations along the entire belt.

[00:13:39] Speaker 01:
So, he adequately described the nature of the accumulations and the location of them, and what he wrote was consistent with what has been required.

[00:13:53] Speaker 01:
It's not the, the, the, the, EmSHA's never put any rules out on this that says, hey, you have to do something more than this.

[00:13:58] Speaker 01:
This is a first-time situation.

[00:14:00] Speaker 01:
There's nothing in the program policy manual.

[00:14:02] Speaker 01:
There's nothing in, EmSHA's never come, this wasn't even EmSHA's rule.

[00:14:06] Speaker 01:
The commission created this rule.

[00:14:08] Speaker 01:
Okay, anything else?

[00:14:11] Speaker 04:
Thank you.

[00:14:28] Speaker 00:
Good morning.

[00:14:29] Speaker 00:
May it please the court.

[00:14:29] Speaker 00:
My name is Lynn Dunbar and I represent the Secretary of Labor, Mine Safety and Health Administration.

[00:14:35] Speaker 00:
With me at council's table is Mr. Ali Baydow, the counsel for appellate litigation in our office.

[00:14:44] Speaker 00:
In this case, the commission properly found that mock violated the safety standard by failing to record the nature and the location of hazardous conditions related to a massive

[00:14:56] Speaker 00:
coal accumulation on a very long 3,500 to 3,600 foot long slope belt.

[00:15:04] Speaker 00:
The testimony at the hearing was that these coal accumulations were obvious and extreme and at some points up to 30 inches deep and six feet wide or wider under this coal belt, including numerous locations.

[00:15:19] Speaker 00:
where the moving belt and rollers were in contact with the deeper accumulations.

[00:15:25] Speaker 00:
In total, the inspector counted 14 rollers and 105 feet of belt that were in contact with coal accumulations.

[00:15:34] Speaker 00:
Inspector Reynolds explained that the examiner's notation needs cleaned and work in progress were, quote, very nonspecific, non-critical type of wording that didn't say where it needed to be cleaned,

[00:15:49] Speaker 00:
how much of it needed to be cleaned, or how anything was in contact with the belt.

[00:15:56] Speaker 02:
Petitioner's argument seems to be that, if anything, they should have been cited for violation of 75.360B11, which

[00:16:08] Speaker 02:
contains the requirements of what pre-shift examinations, inspections have to include.

[00:16:19] Speaker 02:
And so that if the testimony is credited that he didn't see it,

[00:16:25] Speaker 02:
then how can he be cited for not reporting what he didn't observe?

[00:16:30] Speaker 02:
And instead, the citation, if any, should be, well, you didn't do a proper inspection.

[00:16:35] Speaker 02:
And so this whole regulatory selection doesn't make any sense, basically.

[00:16:43] Speaker 00:
Right, the commission addressed that argument when they said that these provisions for the on shift examination and the record keeping requirements are intertwined and that it was within the inspector's discretion to select a more specific standard of record keeping than a general standard of

[00:17:03] Speaker 00:
performing an adequate on-shift examination.

[00:17:06] Speaker 02:
Is there a difference in penalty or severity or gravity of record-keeping versus, you know, failure to inspect properly?

[00:17:18] Speaker 00:
I mean, I don't know, but I know in this case

[00:17:27] Speaker 00:
for the record-keeping violation and for the accumulations violation, MCHA assessed them as the maximum significant and substantial and high negligence.

[00:17:35] Speaker 00:
So I don't know offhand whether a violation of an on-shift examination would incur a higher penalty than a record-keeping violation.

[00:17:45] Speaker 00:
I can't answer that question.

[00:17:47] Speaker 00:
I'm sorry, Your Honor.

[00:17:48] Speaker 04:
Okay, so is it your position that the

[00:17:51] Speaker 04:
argument raised by the dissenter, that is, that the ALJ failed to find that the examiner actually found the violation, that that's not properly before us?

[00:18:15] Speaker 00:
That the dissent's arguments, that the operator...

[00:18:21] Speaker 04:
that that the examiner

[00:18:25] Speaker 04:
that the ALJ never found, never made a finding, that the examiner failed to report violations he found.

[00:18:34] Speaker 04:
That's the argument.

[00:18:35] Speaker 00:
That's true.

[00:18:36] Speaker 04:
They did not allude.

[00:18:37] Speaker 04:
So is it your position that that argument is not properly before us because it wasn't raised in the Blue House?

[00:18:44] Speaker 00:
Yes.

[00:18:45] Speaker 00:
I would say yes, because the secretary is not alleging an inadequate on shift examination.

[00:18:55] Speaker 03:
Just assuming we find the issue, that issue preserved, the question is, the regulation says you have to record violations found by the examiner.

[00:19:10] Speaker 03:
And the interpretive question seems to be whether that is broad enough to encompass

[00:19:15] Speaker 03:
violations that the examiner should have found, but did not.

[00:19:21] Speaker 03:
Seems like that would have arisen before.

[00:19:24] Speaker 03:
Is there any administrative precedent or learning on that point?

[00:19:29] Speaker 03:
Is that issue really arising for the first time in this case?

[00:19:36] Speaker 00:
It wasn't briefed, so I don't think it's arising in this case.

[00:19:42] Speaker 03:
The arresting on preservation.

[00:19:47] Speaker 00:
Resting on what?

[00:19:49] Speaker 03:
Lack of preservation of that issue.

[00:19:54] Speaker 00:
Okay.

[00:19:55] Speaker 00:
Secretary will rest on lack of preservation of that issue.

[00:19:59] Speaker 04:
You must be, because the regulation clearly says, clearly says the record shall be made of any hazardous condition and any violation, quote, found by the examiner.

[00:20:16] Speaker 00:
Right.

[00:20:17] Speaker 00:
Well, in this case, there was the initial citation that was issued for the accumulations violation, for the massive amount of accumulations on the belt.

[00:20:29] Speaker 00:
In addition to, and even on Exhibit P2, the first citation, the first sentence says, loose coal was allowed to accumulate in excessive amounts.

[00:20:42] Speaker 00:
And then,

[00:20:43] Speaker 04:
What are you reading from here?

[00:20:45] Speaker 00:
It is Exhibit P2, the Accumulations Violation, the first of the two citations.

[00:20:50] Speaker 04:
This is from the inspector, right?

[00:20:53] Speaker 00:
It is in the appendix.

[00:20:54] Speaker 04:
No, I understand that, but this is the inspector's report?

[00:20:58] Speaker 00:
This is the citation, the actual citation.

[00:21:01] Speaker 00:
So the first sentence,

[00:21:03] Speaker 00:
the inspector cites that loose coal was allowed to accumulate in excessive amounts.

[00:21:08] Speaker 00:
And then further down in the middle of the citation, he says, in addition, accumulations were in contact with the moving belt and rollers.

[00:21:15] Speaker 00:
So here, the examiner obviously saw these excessive amounts of accumulations

[00:21:22] Speaker 00:
And the record-keeping violation is based on this first accumulations violation.

[00:21:28] Speaker 00:
So it's really more than whether the examiner saw the accumulations actually in contact.

[00:21:35] Speaker 00:
He saw the massive accumulations.

[00:21:38] Speaker 00:
And he failed to note that the accumulations were anywhere close to the belt and rollers, let alone touching the belt and rollers.

[00:21:46] Speaker 04:
Here's another.

[00:21:47] Speaker 04:
He says, the examiner says, this is a citation, the examiner has not properly recorded hazardous conditions in the examination record as were found to exist.

[00:22:02] Speaker 04:
And I would argue that- Found to exist by who?

[00:22:04] Speaker 00:
By the inspector, by the inspector.

[00:22:07] Speaker 04:
It doesn't say that.

[00:22:08] Speaker 04:
That's passive.

[00:22:10] Speaker 04:
It doesn't tell us who the actor is.

[00:22:12] Speaker 00:
It doesn't tell us what?

[00:22:13] Speaker 04:
Who failed to find it.

[00:22:16] Speaker 04:
Well, the inspector- And under the rule, under the regulation, it has to be the examiner has to fail to find it.

[00:22:25] Speaker 00:
Right.

[00:22:26] Speaker 04:
But that doesn't tell us that.

[00:22:28] Speaker 00:
Well, the inspector testified that he saw, he observed the belt just a couple of hours after the examiner observed it.

[00:22:37] Speaker 00:
And he believed and the judge credited the inspector's testimony that the accumulations had existed for several shifts and were in contact with the belt and rollers at the time of the mocks

[00:22:49] Speaker 00:
examination.

[00:22:51] Speaker 03:
Which is enough for you to win on the question whether the violations existed at the time.

[00:22:59] Speaker 03:
That's a different point from the question whether the company's examiner

[00:23:05] Speaker 00:
Well, the inspector testified that based on the conditions that he observed, the inspector believed that Adams had to observe accumulations contacting the belt enrollers in at least some of those locations.

[00:23:21] Speaker 00:
The judge found that driving up the belt may have, what was the word the judge used?

[00:23:29] Speaker 00:
made it difficult for the examiner to see on the far side of the belt.

[00:23:34] Speaker 00:
But not all of the accumulations were on the far side of the belt.

[00:23:37] Speaker 00:
Some of them were observable on the travelway side of the belt.

[00:23:44] Speaker 00:
But here, the examination record can contain no information whatsoever about the nature and location of those massive accumulations, one, and the ignition and fire hazards, two.

[00:24:03] Speaker 02:
An examiner, there are violations that are obvious that any prudent examiner should have seen even from the travel way side of the belt.

[00:24:20] Speaker 02:
But what is written down in the examiner's inspection report is basically everything is fine.

[00:24:31] Speaker 02:
The agency inspector comes along just a few minutes later and documents all of these violations of accumulation that were obvious to her when she comes along just a few minutes later.

[00:24:54] Speaker 02:
If the companies, the operator's defense, is their standard defense, well, he didn't see those, the examiner didn't see those, didn't observe those, what kind of, I guess, regulatory problem does it create for your agency if they're able to put forward a defense like that to the record-keeping violation?

[00:25:22] Speaker 00:
I don't think there's a way that the agency could prove what the examiner saw.

[00:25:27] Speaker 00:
I mean, other than to say that what we have in this case, the inspector testified that the accumulations were in existence and that they were in contact and that the examiner must have seen at least some of them.

[00:25:40] Speaker 00:
I mean, this is the best the agency has.

[00:25:45] Speaker 04:
Thank you.

[00:25:47] Speaker 04:
Anything else?

[00:25:49] Speaker 04:
No.

[00:25:49] Speaker 04:
Okay.

[00:25:50] Speaker 04:
Mr. McHugh, you used up your rebuttal time.

[00:25:53] Speaker 04:
You should get an extra minute.

[00:25:56] Speaker 00:
Okay.

[00:25:56] Speaker 00:
Thank you.

[00:26:06] Speaker 01:
Just a few quick points.

[00:26:08] Speaker 01:
I would note in page 19 of the brief of the petitioner says, to sustain this citation, the inspector, the ALJ, and the commission go beyond the evidence in the plain meaning of the regulation by contending that the examiner Adams saw what he did not see and that 75363B says what it does not say.

[00:26:28] Speaker 01:
So we would contend we've raised the issue, and it's implicit in the rule anyway.

[00:26:32] Speaker 01:
It's an element of the offense.

[00:26:35] Speaker 01:
As far as the point on regulatory gap that Judge Wilkins raised, I want to follow up on that very briefly.

[00:26:42] Speaker 01:
There is no regulatory gap here because all the commission would have had to have done or the secretary would have had to have done is charge under two other regulations that they had at their disposal.

[00:26:51] Speaker 01:
And I wanted to follow up on the second part of my answer to Judge Wilkins.

[00:26:55] Speaker 01:
I didn't finish it, but as I was back there, I was thinking about it, and that is that there was a washback, a big washback event between the time of the exam at 6 a.m.

[00:27:06] Speaker 01:
and the time of the inspection at 8 a.m., and that accounts for some of the additional accumulations along the belt.

[00:27:12] Speaker 01:
And finally, I just wanted to point out, I mean, from a rule, from purely regulatory construction issue, nobody found that this regulation was ambiguous.

[00:27:21] Speaker 01:
So why is it being interpreted?

[00:27:23] Speaker 01:
So if it's ambiguous, there's a new rule that's inconsistent with the regulation.

[00:27:27] Speaker 01:
That's a problem.

[00:27:29] Speaker 04:
Okay, thank you.

[00:27:31] Speaker 04:
Case is submitted.