[00:00:03] Speaker 00:
Case number 17-1219, Secretary of Labor, Mine Safety, and Health Administration Petitioner versus Consolidation, Coal Company, and L. Ms.

[00:00:12] Speaker 00:
Tolar for the petitioner, Mr. Shelton for the respondents.

[00:00:35] Speaker 05:
May it please the court, Emily Tolar for the Secretary of Labor.

[00:00:39] Speaker 05:
This case is about two principles that are vital to the enforcement of the Mine Act and to the protection of miners' safety and health, that when determining whether violations are significant and substantial, judges must neither consider redundant safety measures nor assume that miners will exercise caution.

[00:00:55] Speaker 05:
The judge in this case did both, so we asked the court to vacate that decision and to remand for the judge to reweigh the evidence, considering only relevant evidence.

[00:01:05] Speaker 05:
As a preliminary matter, the commission in this case split two to two about whether to affirm the judge's decision.

[00:01:12] Speaker 05:
So we believe that the proper decision for the court to review is, in fact, the judge's decision.

[00:01:17] Speaker 05:
The judge's findings of facts and conclusions of law, since the commission itself did not articulate one rationale that would be amenable to judicial review.

[00:01:27] Speaker 05:
And the judge's decision is flawed, first, because the judge did consider redundant safety measures, which the commission in this court

[00:01:34] Speaker 05:
consistently held are irrelevant to the question of whether a violation is SNS.

[00:01:40] Speaker 02:
Is the government's position that surrounding circumstances can never be considered at any stage of the analysis?

[00:01:52] Speaker 05:
I think that is what the cases have held.

[00:01:56] Speaker 05:
My reading of the cases, specifically the Jim Walter and Cumberland Cole cases that this court has decided, have never made a distinction about whether other safety measures are relevant.

[00:02:12] Speaker 02:
We said you can't consider surrounding circumstances

[00:02:17] Speaker 02:
in the causation determination under the statute, but we explicitly noted without any whiff of disapproval that the agency did consider surrounding circumstances on the separate statutory element of whether or not there was a hazard.

[00:02:39] Speaker 05:
I suppose my question, I will ask you a question respectively, Judge Casas.

[00:02:42] Speaker 05:
The separate element of whether there is a hazard in the test, the four-part test, or in the statute?

[00:02:49] Speaker 05:
I suppose I'm just confused about that question.

[00:02:51] Speaker 02:
Well, I mean, the cases to me are somewhat confusing.

[00:02:55] Speaker 02:
Our cases go off the statute, which as I read it, you need a violation, you need a hazard, and you need a causal connection.

[00:03:03] Speaker 02:
And we say you can't consider all of the surrounding stuff on the causation question.

[00:03:09] Speaker 02:
We explicitly leave open the hazard question.

[00:03:13] Speaker 02:
And then there's this separate line of administrative precedence, right, or the commission's four-factor test, where if you look at that, a lot of people consider this stuff at factor three and then the Fourth Circuit

[00:03:29] Speaker 02:
And now the commission says, well, it's not a factor three question, it's a factor two question.

[00:03:35] Speaker 02:
And that goes all the way back to Maddie's itself.

[00:03:42] Speaker 05:
I will certainly agree that the law is not exactly clear in this area.

[00:03:48] Speaker 02:
And it just seems very weird to me as a conceptual matter that you could never consider surrounding aggravating or mitigating circumstances no matter how much they change the calculus.

[00:04:05] Speaker 05:
I don't mean to dodge the question, but I'm going to dodge the question a little bit because I think that it is clear, well, the case here involves step three, which is a question of whether an injury was reasonably likely to occur.

[00:04:17] Speaker 05:
They do think that, especially after the Four Circuit's decision in Knox Creek, that it's clear that redundant safety measures, at least for step three, don't matter.

[00:04:25] Speaker 02:
And, but there are some cases where in the course of the Fourth Circuit shifting some of the step three analysis into step two analysis, you know, some courts say, well, okay, now we'll consider this at step two.

[00:04:42] Speaker 02:
I mean, I'm just trying to just trying to pin down whether if this goes back goes back because no one can ever consider surrounding circumstances.

[00:04:57] Speaker 02:
for any purpose at any time or whether it goes back and then there's a question of was a step two issue preserved?

[00:05:04] Speaker 02:
Could the commission reopen given the changing law on two versus three?

[00:05:09] Speaker 02:
It goes to the breadth of what we would say on remand.

[00:05:14] Speaker 05:
I don't think reaching that issue is necessary.

[00:05:19] Speaker 05:
The commission noted, I think noted it, but also felt it wasn't necessary to decide it because the judge's findings, regardless of what test is applied at step three, were, well, were at least reviewable.

[00:05:34] Speaker 05:
And I think that that would be, if the court doesn't want to reach the question of whether hazards are irrelevant at all steps, although

[00:05:42] Speaker 05:
I think, at the very least, three and four, and certainly should be two as well, if not all of them, then I don't think the court has to go there.

[00:05:50] Speaker 05:
But if the court is more concerned about that, I know that we sort of got it.

[00:05:54] Speaker 01:
Was the only issue in this case step three?

[00:05:56] Speaker 05:
The issue in this case is step three, because that's where the judge made her finding.

[00:05:59] Speaker 05:
Because that hazard wasn't in dispute.

[00:06:02] Speaker 05:
Or not in dispute now.

[00:06:03] Speaker 05:
Not in dispute on appeal, that's correct.

[00:06:05] Speaker 05:
So the question really is step three about whether it was likely that an injury would occur.

[00:06:10] Speaker 05:
And I think it's one thing, at least, that is clear in this area, or at least in the judge's decision, is that her decision is based almost completely on the existence of safety measures that are required in addition to the roof control plan.

[00:06:23] Speaker 05:
It's based on her finding that minors would be protected by other pieces of equipment, that they would be forbidden from going under unsupported roof,

[00:06:32] Speaker 05:
or even near it in many cases, and those are the safety standards that IMSA requires in addition to the roof control plan because mines are dangerous and because overlapping safety measures are important to safety and health.

[00:06:44] Speaker 04:
If we thought that there was merit to your argument, would you – is there a reason to consider it as a substantial evidence argument as opposed to an error of law argument?

[00:06:57] Speaker 05:
In the Cumberland case, this court did consider redundant safety measures as a substantial evidence challenge.

[00:07:05] Speaker 05:
But that was framed by the operator.

[00:07:07] Speaker 05:
It was the operator's argument that substantial evidence didn't support the finding in that case.

[00:07:14] Speaker 05:
And so to the extent that the court has done that in the past, I think it

[00:07:19] Speaker 05:
that wasn't the secretary's position and isn't the secretary's position now.

[00:07:22] Speaker 04:
But even if the court does consider it that way, I don't think- Can I just ask you, when you say it's not the secretary's position, I just want to know, you're saying it's not the secretary's position because you think it's just wrong to think of it as substantial evidence, or is there some disadvantage?

[00:07:36] Speaker 05:
I don't think there is a disadvantage.

[00:07:37] Speaker 05:
I just think that it makes more sense to think of the question as a legal question, particularly because the commission, at least, has held

[00:07:46] Speaker 05:
that considering minor caution, which is kind of conceptually parallel, is an error of law.

[00:07:53] Speaker 05:
And I don't think that it's difficult for me to see a distinction between the two.

[00:07:57] Speaker 05:
But even assuming that the court did determine that the issue is substantial evidence, substantial evidence is relevant evidence.

[00:08:06] Speaker 05:
And the commission and this court have repeatedly characterized redundant safety measures as irrelevant.

[00:08:11] Speaker 05:
And the judge's findings, again, are completely based on those facts that are irrelevant.

[00:08:18] Speaker 05:
And so I don't think that there is substantial evidence to support it.

[00:08:24] Speaker 05:
But we do concede that a remand would be required for the judge to consider only the relevant evidence.

[00:08:30] Speaker 05:
And it is possible that the judge would reach the same conclusion on remand only considering the evidence of the violation and the hazard that the violation contributes to.

[00:08:43] Speaker 05:
I also want to discuss briefly that there is no distinction between primary and secondary measures for the purposes of the SNS analysis.

[00:08:52] Speaker 05:
As the commissioners who are in favor of reversing the judge in this case noted, there's never been any basis in any

[00:09:00] Speaker 05:
decision from the Commission or the Court of Appeals in the SNS context that has suggested that some mandatory standards are relevant, or some other redundant standards are relevant, but some aren't.

[00:09:10] Speaker 05:
It doesn't make sense in terms, or it's certainly foreclosed by precedent as well.

[00:09:15] Speaker 05:
In Cumberland, this court rejected an operator's challenge that

[00:09:19] Speaker 05:
Measures that sought to prevent a hazard from occurring and measures that sought to prevent injuries from occurring if the hazard did occur were relevant.

[00:09:27] Speaker 05:
The court said no and rejected both of those.

[00:09:29] Speaker 05:
And so I think that should be dispositive of any distinction between primary and secondary measures.

[00:09:36] Speaker 05:
And just briefly, the judge also erred by assuming that minors would exercise caution, which the commission has repeatedly held is also not relevant because the hazard that the violation contributes to exists regardless of whether minors act cautiously.

[00:09:53] Speaker 01:
It's true that the judge... The hazard here is exactly what?

[00:09:56] Speaker 05:
The hazard was a roof fall that could break back through existing roof supports where minors were working.

[00:10:02] Speaker 01:
that it could or the roof collapse that did happen?

[00:10:05] Speaker 01:
I'm a little unclear about the time frame.

[00:10:08] Speaker 01:
It's not a model of 30.

[00:10:10] Speaker 01:
Right, there was a roof collapse.

[00:10:11] Speaker 05:
There was a roof collapse, but that was not the basis for the citation.

[00:10:15] Speaker 05:
The basis for the citation was that the deep cut in adverse roof conditions put so much stress on the pillars and on the existing roof that a fall could break back through to where miners were working.

[00:10:28] Speaker 05:
But it was not based on the roof fall that did occur.

[00:10:32] Speaker 05:
Thank you.

[00:10:33] Speaker 04:
Thank you, Counsel.

[00:10:41] Speaker 03:
May it please the Court, Billy Shelton on behalf of Consolidation Coal Company.

[00:10:45] Speaker 03:
In this case, the Secretary's appeal lacks merit because the ALJ's decision is supported by substantial evidence and is in accordance with law.

[00:10:55] Speaker 03:
The ALJ conducted a proper analysis of the evidence in this case.

[00:10:59] Speaker 03:
She made findings that were based upon the evidence that was in this case.

[00:11:03] Speaker 03:
In fact, contrary to what my opponent has told you, she made 11 different findings in support of her determination that this violation would not result or be likely to cause significant substantial injury, which is one of these tests.

[00:11:21] Speaker 02:
But embedded in that analysis was the proposition that she could consider other safety measures

[00:11:29] Speaker 03:
one one one safety measure.

[00:11:31] Speaker 03:
She figured your honor was this that and I think it goes to the whole surrounding thing.

[00:11:37] Speaker 03:
What happened in this case was you had an extended cut alleged by him that they said put more stress on the roof and the inspector testified he was concerned that the roof the fall if it failed, which in this case it did and this did not occur.

[00:11:54] Speaker 03:
But if it did, it might

[00:11:55] Speaker 03:
extend out into bolted areas where miners might be.

[00:12:00] Speaker 03:
At trial, we introduced evidence to show the judge that there would be no minors within a reasonable area that if it did extend out, minors wouldn't be present there.

[00:12:11] Speaker 03:
We introduced proof to the ALJ that the miner operator, for example, has a remote control device.

[00:12:19] Speaker 03:
He stands backwards of the boom of the miner, and he's therefore 50 feet away from where the cut is being taken.

[00:12:26] Speaker 03:
We also showed, the MSHER brought up, well, you also have to take gas checks.

[00:12:31] Speaker 03:
We said, well, miners only progress to the second row of boats.

[00:12:35] Speaker 03:
They have a 20-foot probe that they stick and extend out to measure.

[00:12:39] Speaker 02:
They have to go under the affected area to bolt it, as I understand.

[00:12:44] Speaker 02:
And your response to that is when they do that, they have this ATR system.

[00:12:50] Speaker 02:
Well, first of all, Your Honor, I think the proper analysis... I would think that that might or might not be a really good argument in your favor, depending on how well an ATRS works.

[00:13:05] Speaker 02:
Except there seems to be this case law that you just have to ignore the ATRS.

[00:13:11] Speaker 03:
Well, I don't think you do, because I think what the case law says is when you look at the nature of the violation,

[00:13:17] Speaker 03:
you can't consider redundant safety measures.

[00:13:21] Speaker 03:
And the case is all, for example, in the Buck Creek case, what Buck Creek was about was the, it was an accumulation violation and there was a question as to a fire, if a fire occurred.

[00:13:33] Speaker 02:
What the operator says- Let's just tie this one down.

[00:13:36] Speaker 02:
Okay, well this- The violation is the cut.

[00:13:40] Speaker 02:
to cut the violation and people have to go under that area to fix the top of the mind.

[00:13:49] Speaker 03:
But your honor, that happens every second in every mine in the United States.

[00:13:54] Speaker 03:
When you take a cut, you're just like... I understand.

[00:13:57] Speaker 02:
I understand.

[00:13:58] Speaker 03:
You have to then go in and bolt that top, and miners do that every day.

[00:14:02] Speaker 02:
And that might be a larger or a smaller safety problem, depending on how well the other protections work.

[00:14:12] Speaker 03:
Well, it's not a safety problem at all, Your Honor, because it's part of the normal mining process.

[00:14:17] Speaker 03:
When you make a cut, you have an area of roof that you've exposed that's not yet bolted.

[00:14:22] Speaker 03:
So then miners go in, they put up their ATR assistance to support the roof to provide roof control for the bolting procedure.

[00:14:30] Speaker 02:
What is wrong with the following

[00:14:34] Speaker 02:
reason why you lose the case, which is no matter how safe the ATRS and no matter how sensible it would be for someone to consider that,

[00:14:48] Speaker 02:
We have cases that say you only look at the violation and the violation is the cut and the ATRS is not part of the violation.

[00:14:58] Speaker 02:
So we just have to pretend it's not there.

[00:15:01] Speaker 03:
But again, I think the cases that talk about redundant safety are not the same as what you have in this case.

[00:15:08] Speaker 03:
Because again, going back, for example, the Buck Creek case, what the operator said in that case was this is not significant substantial violation because

[00:15:16] Speaker 03:
And if a fire occurs, then we've got extra water facilities.

[00:15:22] Speaker 03:
We've got a fire retardant belt so that the fire will not.

[00:15:26] Speaker 03:
But the fact of the nature of the violation, the fire itself is dangerous.

[00:15:30] Speaker 03:
So therefore, you don't get to consider that when you determine whether or not this is a violation or not.

[00:15:36] Speaker 02:
But the question... I agree with you that a lot of the cases seem very different on the facts, right?

[00:15:44] Speaker 02:
To say there's going to be a fire and an explosion, but don't worry about it because we have a fire extinguisher seems really different from this case.

[00:15:53] Speaker 02:
But the problem is the language in our decisions just seems broader.

[00:15:58] Speaker 03:
Well, but again, I go back, Your Honor, to the situation that in this case,

[00:16:04] Speaker 03:
The judge made one comment in a report that said, well, the minor's not going to be exposed because he's away.

[00:16:11] Speaker 03:
The guys doing the gas check aren't going to be exposed.

[00:16:13] Speaker 03:
All these people are not going to be exposed.

[00:16:16] Speaker 03:
And also, by the way, when the minors go in to correct and bolt the top, they've got the benefit of the ATR system.

[00:16:25] Speaker 03:
That's the one comment she made.

[00:16:27] Speaker 03:
She never made any other comments that basically said, this is the main thing that I'm relying upon.

[00:16:34] Speaker 03:
You know, I try a lot of IMCHA cases, and a lot of times, you know, where the operator makes the argument that, well, no one will be exposed here, IMCHA comes out and says, well, but in the last 12 months, this operator's been cited four times for minors going within an unsupported route.

[00:16:50] Speaker 03:
Or an inspector may say, well, I've seen footprints in that area, which means to me that people have gone into that area.

[00:16:58] Speaker 03:
Again, it's a part of the judge's fact-finding determination

[00:17:02] Speaker 03:
and ultimate decision making that she takes all of that into consideration, looks at all the facts, and then determines is it reasonably likely that a significant injury will occur as a result of the conditions cited in the violation.

[00:17:19] Speaker 03:
And in this case, she did exactly what everyone wants her to do.

[00:17:24] Speaker 03:
She did that.

[00:17:24] Speaker 03:
she set out at least 13 different factors that supported her determination that this violation was unlikely to lead to a significant injury to the minors in this mine.

[00:17:37] Speaker 03:
And, you know, the secretary's kind of picked out this one little statement she makes that when she says, and oh, by the way, when the miners go in to correct this situation.

[00:17:49] Speaker 03:
I'm sorry, ma'am.

[00:17:49] Speaker 01:
I didn't see 13 things.

[00:17:53] Speaker 01:
I'm sorry.

[00:17:53] Speaker 01:
It may have been 11.

[00:17:55] Speaker 01:
Well, so I'm on day 4243.

[00:17:58] Speaker 01:
And I saw the prohibition on miners entering, which is a redundant safety standard.

[00:18:07] Speaker 01:
the ATRS, the tighter bolting pattern.

[00:18:15] Speaker 01:
I'm not seeing 13 or 11.

[00:18:18] Speaker 01:
Am I not looking on the right page?

[00:18:21] Speaker 03:
I didn't count them all, Your Honor.

[00:18:23] Speaker 03:
I know that in the Commission decision, the affirming commissioners

[00:18:28] Speaker 03:
made a point and actually set that out in their decision.

[00:18:30] Speaker 03:
It was either 11 or 13.

[00:18:32] Speaker 03:
I don't recall.

[00:18:34] Speaker 01:
What else do you see here if we're reviewing the ALJ decision?

[00:18:38] Speaker 03:
I know that she relied upon the location of the people, the fact that the roof actually did fall and that it didn't extend outside the bolt pattern.

[00:18:53] Speaker 03:
There was a tighter bolting pattern.

[00:18:56] Speaker 03:
Also that the

[00:18:57] Speaker 03:
the area was bolted immediately thereafter, therefore, I guess, cutting down the time upon which miners could be exposed to the hazard.

[00:19:06] Speaker 03:
That was one consideration she made.

[00:19:08] Speaker 03:
I'm sorry, Your Honor, I didn't count when you were reading them off, but I know that in the 11, I think,

[00:19:14] Speaker 02:
You're referring to is not in the ALJ's decision.

[00:19:19] Speaker 03:
It's in the commission's decision.

[00:19:21] Speaker 03:
It's the affirming commissioners indicated in their decision.

[00:19:23] Speaker 01:
Right, but we can't rely on their fact finding or things like that.

[00:19:26] Speaker 01:
So as to hers, we don't actually have anything other than redundant safety measures in the ALJ decision?

[00:19:33] Speaker 03:
I think there's lots more in the decision.

[00:19:36] Speaker 01:
Not in the record, in the decision.

[00:19:38] Speaker 03:
Oh, in the decision.

[00:19:39] Speaker 01:
The ALJ's decision.

[00:19:40] Speaker 03:
Oh, yes.

[00:19:40] Speaker 03:
She cites.

[00:19:42] Speaker 03:
to all the reasons why, and then she mentioned the one being that

[00:19:49] Speaker 03:
when miners go into bolt, they have the ATRS to produce them.

[00:19:53] Speaker 03:
But she cites other analyses and reasons for her determination that the Matthews test is... Is it someplace other than page 42 or 43 that you say she's citing it, or can you tell me?

[00:20:03] Speaker 01:
I'm just not understanding what else you were saying.

[00:20:06] Speaker 03:
Well, she goes, yeah, I think her analysis, you're correct, Your Honor, is on page 42 and 43.

[00:20:12] Speaker 03:
And beginning at the bottom of page 42, that full paragraph there, she discusses

[00:20:19] Speaker 03:
her determination as to why it's unlikely that and that extends on to page 43.

[00:20:25] Speaker 03:
And then again, you know, she makes one comment that

[00:20:32] Speaker 03:
The about the issue about the when the miners go in, she says, you know, miners generally not allowed underneath the last row of bolts to extend ventilation in which the continuous miners ripper head must be placed against the roof or to operate the roof bolting machine, in which case the ATRS supplemental roof support.

[00:20:49] Speaker 01:
Aren't those all redundant safety measures?

[00:20:53] Speaker 01:
I'm confused.

[00:20:54] Speaker 01:
Maybe I misunderstood you.

[00:20:55] Speaker 01:
I thought you were saying that she relied on a whole bunch of things, only a few of which were these redundant safety measures.

[00:21:00] Speaker 01:
This was just a little problem in her decision.

[00:21:03] Speaker 03:
Well, first of all, I don't think it's a redundant safety measure, Your Honor, because, again, if it were, she relied in one comment on a redundant safety measure.

[00:21:14] Speaker 03:
I would agree if you determined that's a redundant safety measure one time.

[00:21:18] Speaker 03:
The other thing she relied upon are not redundant safety measures.

[00:21:22] Speaker 03:
The fact is, if no one's in the area exposed to the hazard, how can there be a reasonably likely that a substantial... Why doesn't that rely on minor caution?

[00:21:34] Speaker 03:
Again, there's as many cases on the other side where, for example, Your Honor, if you look at the case right before in the judge's decision, I think it's on Joint Appendix, page 39, the judge determines that an accumulation violation is not S&S because there's no ignition source.

[00:21:55] Speaker 03:
Well, you could say, well, she was improperly considered that because she considered that minors would act safe and one of them wouldn't light a cigarette while he was underground.

[00:22:03] Speaker 03:
So, I mean, again, it's just pick and choose.

[00:22:07] Speaker 03:
She performed an analysis based upon the facts that got presented to her and decided a case looking at all the evidence that got presented.

[00:22:17] Speaker 03:
This is like the affirming commissioner said, this is a substantial evidence case.

[00:22:23] Speaker 03:
Looking at the judge's decision, some other judge may have considered otherwise, but this is a substantial evidence case, and the judge's decision is supported by substantial evidence and should be affirmed.

[00:22:34] Speaker 04:
Thank you, Council.

[00:22:35] Speaker 04:
Thank you, Your Honors.

[00:22:44] Speaker 05:
I have just one factual and one legal point to make in rebuttal.

[00:22:48] Speaker 05:
Factually, every single one of the judges' findings in this case did rely on either minor caution or redundant safety measures.

[00:22:54] Speaker 05:
Those findings were minors' training, what minors were permitted to do, the ATRS system, the tighter bolting pattern, and the existence of resin bolts.

[00:23:02] Speaker 05:
Every single one of those things

[00:23:04] Speaker 05:
is either required by interest standards or required by the mine's roof control plan or assumes that miners will exercise caution.

[00:23:11] Speaker 05:
And legally, resolving this case doesn't require the court to do anything more than to affirm existing and well-settled law, which is that redundant safety measures are irrelevant to the SNS now.

[00:23:19] Speaker 01:
And so you mentioned a remand.

[00:23:22] Speaker 01:
What is the point of the remand for?

[00:23:24] Speaker 01:
The remand is for the judge to just reinstate the penalty or to take a second stab.

[00:23:31] Speaker 05:
I don't think there would be any more evidence that would just be the judge considering the evidence that is relevant to the violation without the... What other evidence needs to be considered?

[00:23:42] Speaker 05:
I think the evidence that needs to be considered is there was a deep cut

[00:23:48] Speaker 05:
and the judge found that it contributed to the hazard of a roof fall, the judge just needs to determine now, without assuming that miners were protected by other pieces of equipment, without assuming they won't go under or near unsupported roof, was there still a reasonable likelihood that any of the miners working in the area would be injured by a roof fall?

[00:24:05] Speaker 01:
But I'm just trying to figure out from the decision we have in front of us and the record.

[00:24:11] Speaker 01:
So in your view, it's still open whether or not this was a serious and substantial violation that there are permissible bases on which that could be found.

[00:24:19] Speaker 01:
Yes, that's correct.

[00:24:20] Speaker 02:
And in your view, is it open perhaps in other cases for people to argue redundant measures bearing on prom 2?

[00:24:33] Speaker 02:
I know you're saying this is not a pronged two case.

[00:24:39] Speaker 05:
I think the state of the law is a little in flux after the Newtown decision.

[00:24:42] Speaker 05:
I think operators are free to argue it, and I look forward to arguing right back at them.

[00:24:48] Speaker ?:
Okay.

[00:24:48] Speaker 04:
Thank you.

[00:24:49] Speaker 04:
Thank you, Council.

[00:24:50] Speaker 04:
The case is submitted.