[00:00:01] Speaker 00:
Case number 20-1299, Secretary of Labor, Mine Safety and Health Administration, Petitioner, versus Nighthawk Coal, LLC, and Federal Mine Safety and Health Review Commission.

[00:00:13] Speaker 00:
Ms.

[00:00:13] Speaker 00:
Scott for the petitioner, Mr. Moore for the respondents.

[00:00:18] Speaker 01:
Good morning, Council.

[00:00:19] Speaker 01:
Ms.

[00:00:19] Speaker 01:
Scott, please proceed when you're ready.

[00:00:21] Speaker 02:
Good morning, and may it please the court, Emily Toler-Scott for the secretary.

[00:00:26] Speaker 02:
I reserve two minutes for rebuttal, please.

[00:00:30] Speaker 02:
Established principles of administrative law support applying arbitrary and capricious review to the secretary's plan suitability determinations.

[00:00:39] Speaker 02:
Commission's decision in this case would require the court to contradict not only those principles, but also its decision in Prairie State used without any basis element of proof to arbitrary and capricious reveal.

[00:00:53] Speaker 02:
Portia reversed the commission's decision and reaffirmed that arbitrary and capricious review, that is genuine arbitrary and capricious review, not the nominal version that the commission applied, applies to IMSA's plan suitability determinations.

[00:01:08] Speaker 02:
It's true in this case that the commission said that it applied arbitrary and capricious review to the secretary's decision that Nighthawk's ventilation plan was not suitable.

[00:01:18] Speaker 02:
But saying that the commission was doing something is not the same as actually doing it.

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And the commission's using the kind of magical words of our grand capricious review doesn't actually apply that standard correctly.

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Instead, what the commission did was introduce a new requirement, what it called a proof of plausible harm to arbitrary and capricious review.

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And that's a legal error for a number of reasons.

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And it's not appropriate in arbitrary and capricious review.

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So the first of those is that there's no basis in any of the case law on ventilation plans specifically.

[00:01:56] Speaker 01:
Can I ask a threshold question about the review standard?

[00:02:01] Speaker 01:
Let's assume that the commission reviews what the secretary did under arbitrary and capricious review, which is what both parties are assuming.

[00:02:13] Speaker 01:
Then my question is, what is the standard by which we review the commission's determination that the secretary acted arbitrarily, arbitrary and capriciously?

[00:02:22] Speaker 01:
And it looks like in the respondents brief, they indicate that the question for us is,

[00:02:31] Speaker 01:
whether the finding that the secretary acted in an arbitrary and capricious manner is something we review for substantial evidence, as opposed to whether we review de novo whether the secretary acted in an arbitrary and capricious manner.

[00:02:48] Speaker 01:
And I thought that that's what they're arguing in the brief at page 19.

[00:02:53] Speaker 01:
And I didn't see in your reply brief that you thought differently.

[00:02:59] Speaker 02:
No, that's correct.

[00:03:00] Speaker 02:
I agree that substantial evidence is the standard of review for the commission's finding about whether the secretary acted arbitrarily.

[00:03:10] Speaker 02:
But that's distinct from the legal question of whether the commission actually, in fact, applied arbitrary and capricious review correctly, if that distinction makes sense.

[00:03:20] Speaker 01:
It may make sense, but I'm not sure I follow it.

[00:03:22] Speaker 01:
And I guess my question is, for our purposes, when we're reviewing what the commission did, are we asking,

[00:03:30] Speaker 01:
Was the commission right, de novo, to think that the secretary acted arbitrary and capriciously?

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Or are we asking, was there substantial evidence supporting the commission's determination that the secretary acted in an arbitrary and capricious manner?

[00:03:46] Speaker 01:
And I guess what that gets to is the determination that the secretary acted in an arbitrary and capricious manner.

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Is that a question of law that we reviewed de novo?

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Or is that finding a fact that we review

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for substantial evidence?

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What's your view on that?

[00:04:01] Speaker 02:
Our view is that that's a substantial evidence question.

[00:04:04] Speaker 02:
That's the approach that the court took in Prairie State.

[00:04:06] Speaker 02:
So in Prairie State, the court considered first the kind of threshold legal question of what standard of review applies at all, but then considered whether the commission's finding in that case that the secretary did not act arbitrarily was supported by substantial evidence.

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And I think the same breakdown should apply here.

[00:04:25] Speaker 05:
This is less than a question and more an observation, but this system, I'm baffled by it, just like our chief judges.

[00:04:34] Speaker 05:
There is a line of cases in our circuit in administrative law that says the arbitrary and capricious review is the same as substantial evidence review.

[00:04:43] Speaker 05:
And so if you frame it up, it says that, and this is the statute says that the commission has to review the ALJ

[00:04:54] Speaker 05:
by a substantial evidence test.

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And then the judicial review provision of the statute says that we review the commission by a substantial evidence test.

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So you wind up with a system that says that the ALJ determines

[00:05:13] Speaker 05:
whether the secretary had substantial evidence to support, and the commission has to credit the ALJ by substantial evidence, and we have to credit the commission by substantial evidence.

[00:05:25] Speaker 05:
It's totally, absolutely bizarre.

[00:05:29] Speaker 05:
That's not a question.

[00:05:30] Speaker 02:
Well, Judge Randolph, I would just point out one thing.

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I think the commission's law is generally that ALJs

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The first instance in most cases apply a preponderance standard.

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Now, I understand that these plan dispute cases are very different, obviously, from your run-of-the-mill enforcement cases that the commission hears.

[00:05:57] Speaker 01:
But I'll try to ask a question also, because I have the same kind of complex of concerns.

[00:06:07] Speaker 01:
It seems there's something a little bit odd about saying that we review a determination as to whether the commission of the secretary acted in an arbitrary and vicious manner for substantial evidence, because it indicates that that's a question of fact.

[00:06:25] Speaker 01:
whether the secretary acted in an arbitrary and capricious manner feels to me like kind of like a mixed question of law and fact that ultimately a legal conclusion that the secretary acted in an arbitrary and capricious manner.

[00:06:38] Speaker 01:
It seems like that's a legal conclusion that's grounded in facts.

[00:06:41] Speaker 01:
Of course, we have to consider the reviewing body would have to consider the underlying facts to reach the legal assessment of whether there was an arbitrary and capricious

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deficiency, but it seems a little bit odd to say that we apply substantial evidence to the question of whether the secretary acted in an arbitrary and capricious fashion.

[00:07:03] Speaker 01:
But you seem to be buying into that.

[00:07:04] Speaker 01:
And I think that makes it harder for you, I think, right?

[00:07:07] Speaker 01:
Because I mean, it would be easier for you if we reviewed that de novo.

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I'm not necessarily saying that's right or wrong.

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I'm just saying I'm somewhat puzzled by the questions on this, because I don't completely know

[00:07:19] Speaker 01:
what the answer is.

[00:07:21] Speaker 02:
I apologize if I've sort of muddied these waters or not provided more clarity.

[00:07:26] Speaker 02:
I think our position was simply that applying kind of the framework that was applied in Prairie State, the factual findings that the commission made to support its ultimate conclusion of arbitrariness would be reviewed for substantial evidence.

[00:07:41] Speaker 01:
That's definitely true.

[00:07:43] Speaker 01:
But the determination that the secretary acted in an arbitrary and capricious manner

[00:07:49] Speaker 01:
What, what standard of review do we apply to that because that's what you put before us, you're saying the commission was wrong to conclude that the secretary acted in an arbitrary and vicious manner.

[00:08:00] Speaker 01:
And we could review that de novo.

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We could just step into the shoes of the commission and say, well, we'll look at what the secretary did and we'll decide de novo whether the secretary acted in an arbitrary and capricious manner and whether the commission was right to conclude that the secretary did.

[00:08:13] Speaker 01:
Or we could do something more deferential towards the commission.

[00:08:16] Speaker 01:
And we could say, well, actually, we don't review de novo whether the commission was right to conclude that the secretary acted in an arbitrary and capricious manner.

[00:08:22] Speaker 01:
We're going to review that deferentially.

[00:08:24] Speaker 01:
Maybe we think it's a question of fact as to which we apply substantial evidence review, which is, I think,

[00:08:28] Speaker 01:
what the respondent is saying, in which I didn't take you to be disputing.

[00:08:31] Speaker 01:
But that seems like a steeper climb for you than if we were reviewing it de novo.

[00:08:38] Speaker 02:
I agree that it is a somewhat steeper climb.

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But let me step back to the underlying question.

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So yeah, I mean, yes, I think that at least it is, in some respects, a mixed question of law and facts.

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But at least in resolving this case,

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you know, I think whatever standard the court applies, the commission's decision can't stand.

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So, and this is ultimately because EMCHA's decision, I'll use EMCHA and the secretary interchangeably here just to try to clear up any confusion.

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But EMCHA's decision that this plan was not suitable is, you know, imminently reasonable and supported by the evidence that was before EMCHA at the time.

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And this is, you know, primarily concerned with

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two issues.

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One was the deep perimeter cuts, which were not accurately ventilated.

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And the other was the inadequate weekly examinations that MIND examiners are required to do.

[00:09:43] Speaker 02:
So fundamentally, what IMCHA found about these deep cuts on the first point is that deep cuts are more difficult to ventilate generally.

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That's especially true when they are dead ends, like they are in this case.

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These deep cuts in particular were difficult to ventilate because, again, they're dead ends.

[00:10:02] Speaker 02:
They're not connected to anything else in the worked out areas.

[00:10:05] Speaker 02:
They're unbolted.

[00:10:06] Speaker 02:
There are no roof bolts put in the roof, which keeps it from collapsing.

[00:10:11] Speaker 02:
So you have these deep cuts, which are inherently more unstable.

[00:10:14] Speaker 02:
They're not bolted, so they're even more likely to collapse.

[00:10:18] Speaker 02:
Earth collapse is one of the things that is most likely to release methane, which, of course, is one of the sources of catastrophic and fatal mine explosions.

[00:10:27] Speaker 02:
So here you have kind of a combination of factors that makes these perimeter cuts exceptionally dangerous.

[00:10:34] Speaker 02:
And that's one of the concerns that IMCHA had in this case.

[00:10:39] Speaker 02:
not, it was not arbitrary, it was in fact, eminently reasonable for IMSA to say to Nighthawk, well, you know, you need to tell us how you're going to ventilate these deep cuts or alternatively, you can take shorter cuts, you can take 20 foot cuts, or you can, you know, just one of these two is what we need for you.

[00:10:56] Speaker 02:
And IMSA didn't get anything from Nighthawk on that despite, you know, 10 months of asking for it.

[00:11:02] Speaker 02:
IMSA didn't get anything from the operator that was going to address those deficiencies.

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And then the second reason that Imcha was concerned about this plan was, again, the inadequate weekly examination.

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So a mine examiner has to, what's called walking the bleeders, essentially a mine examiner has to go through these worked out areas at least once a week and determine, you know, take measures of methane and determine whether the ventilation plan is in fact working like it's supposed to.

[00:11:32] Speaker 02:
And Imcha found that because there were

[00:11:35] Speaker 02:
And she found that there were a number of deficiencies in this plan that made it not possible for the examiner to really figure out whether that was going on.

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One is, generally, these areas was not controlled.

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It was sort of intermixed.

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And again, the point of requiring these exams is to make sure that every part of these worked out areas is ventilated.

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So you need air to get into each place

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in this worked out area to ensure that you don't have pockets of methane.

[00:12:06] Speaker 02:
Because again, those can accumulate and cause explosions.

[00:12:11] Speaker 04:
Scott, can I interrupt you?

[00:12:13] Speaker 04:
Because I just want to make sure I get my question in the way I view this case.

[00:12:19] Speaker 04:
And that is, it has very special circumstances in that this perimeter cut scheme had been approved repeatedly.

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The VINTS study, to me, doesn't show any change circumstance.

[00:12:41] Speaker 04:
To me, it's an unusual case in that there have been past approvals.

[00:12:48] Speaker 04:
And at least until you point me to what circumstances have changed, there are no change circumstances.

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And it was arbitrary and capricious for

[00:13:02] Speaker 04:
and the secretary to say, no, based on the vent study alone, I'm not looking at the other bases for the commission, but based on the vague inconsistent vent study, it was arbitrary and capricious to vacate this perimeter cut

[00:13:31] Speaker 04:
in view of the past approvals.

[00:13:35] Speaker 02:
I don't think it is, Judge Henderson, for a few reasons.

[00:13:38] Speaker 02:
So one is that, you know, IMSA didn't decide to revisit this plan for no reason at all.

[00:13:46] Speaker 02:
What prompted IMSA's revision or what prompted IMSA to go look at this plan again was, you know, another mine in the same area, Gateway North, wanted something very similar to what this mine was doing.

[00:14:00] Speaker 02:
before it approved 40 foot cuts in that case, or at that mine, excuse me, EMCHA did a ventilation study there and discovered that those cuts were not being adequately ventilated.

[00:14:13] Speaker 02:
And so it was the findings from that ventilation study essentially that a very similar plan was not functioning adequately, was not suitable that prompted EMCHA to go look at this mine.

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And I don't think that was arbitrary because there were so many similarities between the plans

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and the mines here.

[00:14:31] Speaker 02:
Additionally, I don't think that, I don't think that- Was it Gateway, the roof collapse caused by the bolt?

[00:14:43] Speaker 04:
I apologize, Jacinda Henderson.

[00:14:45] Speaker 04:
I'm not following the question.

[00:14:46] Speaker 04:
All right.

[00:14:47] Speaker 04:
What happened in Gateway that made them look at Prairie Eagle?

[00:14:52] Speaker 02:
Oh, so Gateway had been using a shorter perimeter cuts, but they wanted to begin using 40-foot perimeter cuts, like the cuts that were already being used at Prairie State.

[00:15:04] Speaker 02:
All right.

[00:15:04] Speaker 02:
So EMSA approved them in that case.

[00:15:06] Speaker 02:
EMSA did a ventilation study at Gateway to determine whether those deep cuts could be approved there.

[00:15:13] Speaker 02:
So that was the basis for starting this.

[00:15:15] Speaker 02:
Now, I would agree that if you had a plan at a mine that had nothing to do whatsoever with

[00:15:22] Speaker 02:
or it was completely dissimilar.

[00:15:23] Speaker 02:
I apologize, I see I'm out of time.

[00:15:26] Speaker 02:
Go ahead, answer.

[00:15:28] Speaker 02:
So if you know IMSA had no, if IMSA's only information was from a plan that was completely

[00:15:34] Speaker 02:
similar to this mine, had nothing whatsoever to do with the mining conditions or ventilation system that was in use at this mine, that would be one thing.

[00:15:42] Speaker 02:
But here, again, Emsha got information about a mine that was using or proposing to use, rather, proposing to use a very similar plan.

[00:15:50] Speaker 02:
And for those similarities, I think, support the reasonableness of Emsha's decision here to

[00:15:58] Speaker 02:
To conduct this ventilation study and just just a quick final point.

[00:16:01] Speaker 02:
You know, the minor contemplates that ensure will revisit these ventilation plans and she's required to look at them by statute, at least once every six months.

[00:16:10] Speaker 02:
Yes, it's true that this had been approved in the past, but that doesn't tie him his hands about you know whether it should whether it has to be approved in the future.

[00:16:18] Speaker 02:
and holding that's arbitrary for IMSA to do that, you know, largely on the basis that it had been approved in the past, I think would be contrary to the statutory design and would really make it difficult for IMSA to respond to new information about threats to minor safety and health.

[00:16:38] Speaker 01:
Thank you, Ms.

[00:16:38] Speaker 01:
Scott.

[00:16:38] Speaker 01:
If my colleagues don't have any further questions at this point, we'll hear from respondents council.

[00:16:44] Speaker 01:
Mr. Moore.

[00:16:46] Speaker 03:
Yes.

[00:16:47] Speaker 03:
May it please the court, I'm R. Henry Moore.

[00:16:49] Speaker 03:
I represent Night Heart Coal in this matter.

[00:16:52] Speaker 03:
I think it is important to keep in mind when we're talking about this case, leaving aside the fact that this had been repeatedly reviewed and repeatedly approved over the years, is that this is a worked out area.

[00:17:07] Speaker 03:
Miners do not enter it after it is mined.

[00:17:10] Speaker 03:
And the typical way you evaluate a mined out area is you see what air is going in and what air is coming out.

[00:17:18] Speaker 03:
And that was, as Mr. Haassenstab described to the judge, that is exactly what was being done.

[00:17:26] Speaker 01:
I thought, am I wrong?

[00:17:27] Speaker 01:
I thought with perimeter mining that with worked out areas, there's still exposure in a way that there's not with non-perimeter mining.

[00:17:35] Speaker 03:
No, I don't believe that's the case.

[00:17:38] Speaker 03:
Yes, you can go in because the roof is supported in many of the areas, although not in the perimeter cuts themselves, but you don't normally go in because you've mined it out.

[00:17:51] Speaker 03:
you are looking to see if that area is ventilated by checking what goes into the area and what comes out of the area.

[00:18:00] Speaker 03:
And that's what they were doing.

[00:18:01] Speaker 03:
Now, one of the things about that study that they did, and we have to recognize that all three of the mines that they studied were the only mines doing perimeter mining at that point, although Gateway North had a predecessor mine, Gateway, that did perimeter mining.

[00:18:21] Speaker 03:
However, when you look at that study, there are a couple of things that really strike you, which should have struck the district manager.

[00:18:31] Speaker 03:
First of all, the methane levels, even in the extended ends of the perimeter cuts, were minimal, a 10th of a percent of methane or less.

[00:18:43] Speaker 03:
Those are very good numbers.

[00:18:45] Speaker 03:
The other thing that was striking was the oxygen numbers.

[00:18:50] Speaker 03:
If you, when you expose coal to air, it begins to oxidize.

[00:18:55] Speaker 03:
What happens is it uses up oxygen.

[00:18:57] Speaker 03:
If you were not getting an air exchange as Mr. Hartzog, our expert described across that workout area, you would be seeing lower levels of oxygen.

[00:19:09] Speaker 03:
You were not.

[00:19:13] Speaker 03:
What hasn't been mentioned here, of course, is that

[00:19:19] Speaker 03:
We're talking about what the district manager considered so far.

[00:19:23] Speaker 03:
Well, what he didn't consider was the safety benefits of perimeter mining.

[00:19:29] Speaker 03:
Perimeter mining has distinct safety benefits that nobody disputes here.

[00:19:35] Speaker 03:
And he did not consider them.

[00:19:37] Speaker 03:
And the judge made a credibility finder when he said, oh yeah, I thought about them.

[00:19:41] Speaker 03:
Well, he didn't even mention them in any of his letters to them.

[00:19:46] Speaker 03:
These safety benefits are significant.

[00:19:50] Speaker 03:
They are obviously worth considering.

[00:19:52] Speaker 03:
We cited the Canyon fuel case involving an escape way and suitability determination where the judge hadn't considered the safety benefits.

[00:20:12] Speaker 05:
The usual situation with an agency decision that is reviewed for arbitrary and capricious is there's some sort of written opinion.

[00:20:22] Speaker 05:
But here, the secretary didn't, it wasn't a formal adjudication.

[00:20:28] Speaker 05:
Is the rationale, the secretary's entire rationale consists of the letters, is that it?

[00:20:38] Speaker 03:
The letters,

[00:20:41] Speaker 03:
and the technical citation that was issued to give the commission jurisdiction.

[00:20:47] Speaker 05:
That's it.

[00:20:48] Speaker 03:
That's it.

[00:20:51] Speaker 03:
It's while a ventilation or roof control plan ends up with something akin to a mandatory standard, which is why it is worthwhile looking at the safety benefits when you were analyzing the plan.

[00:21:06] Speaker 05:
Well, let me follow up on that.

[00:21:10] Speaker 05:
Do you read the correspondence back and forth and the citation as meaning that, okay, your ventilation plan was maybe okay, but ours is better?

[00:21:28] Speaker 03:
No, I don't.

[00:21:29] Speaker 03:
read it that way.

[00:21:31] Speaker 03:
I think I would like to read it that way in a sense, but no, I'm reading it as they thought ours was bad and shouldn't be used at all.

[00:21:41] Speaker 03:
And I don't think that's really should be the case.

[00:21:46] Speaker 03:
You know, they permitted Nighthawk to use it for years, they permitted other mines to use it

[00:21:51] Speaker 03:
as Mr. Esslinger, a former 30-year M-SHARE employee said, other mines have been using this.

[00:21:58] Speaker 03:
It is a very safe method of doing it.

[00:22:01] Speaker 05:
Yeah, but the agency can change its mind, can it?

[00:22:05] Speaker 03:
Well, the agency can change its mind, but it has to be reasonable when it does that.

[00:22:09] Speaker 03:
And one of the things they didn't do here is look at the safety aspects and balance it out.

[00:22:15] Speaker 03:
This court over the years, and I know Judge Henderson's been involved in some, has dealt with petitions for modifications of mandatory standards.

[00:22:26] Speaker 03:
And one of the aspects of those that you look at is whether or not there are safety advantages irrespective of what the standard provides.

[00:22:37] Speaker 03:
And in this particular case, there are distinct safety advantages from a standpoint

[00:22:45] Speaker 03:
of avoiding hazards of roof bolting, standpoint of respirable dust, which is specifically a purpose of a ventilation plan, moving equipment and the like.

[00:22:59] Speaker 03:
There are significant safety aspects that the district manager just simply ignored.

[00:23:06] Speaker 03:
Excuse me.

[00:23:12] Speaker 03:
But he, but,

[00:23:15] Speaker 03:
We look at some other things here.

[00:23:17] Speaker 03:
It's not only failure to look at the safety aspects.

[00:23:22] Speaker 03:
One of the things he didn't do is talk to his own inspectors.

[00:23:24] Speaker 03:
This district manager did not have any experience with perimeter mining.

[00:23:30] Speaker 03:
He said he'd been in Nighthawk, but he'd never looked at perimeter mining.

[00:23:34] Speaker 03:
He's got a number of inspectors who inspect this mine regularly, ventilation specialists and the like.

[00:23:41] Speaker 03:
And he never sat them down and said, what do you think of this?

[00:23:45] Speaker 03:
His excuse was, well, this wasn't a planned revision.

[00:23:48] Speaker 03:
This was a revocation.

[00:23:49] Speaker 03:
I find a revocation to be a major form of revision if you want to know the truth.

[00:23:56] Speaker 03:
The excuse is, well, they were part of Mr. Beiter's team.

[00:24:01] Speaker 03:
Well, apparently he didn't talk to them.

[00:24:06] Speaker 03:
But given how he reacted when he disagreed with one of his subordinates who was doing smoke tests, I'm not surprised that he didn't talk to them.

[00:24:17] Speaker 03:
He didn't talk to those people who, we have evidence, supported perimeter mining.

[00:24:30] Speaker 03:
Normally, when you have a worked out area,

[00:24:36] Speaker 03:
The roof is bad, the atmosphere is bad, and you can't go in there and do the sort of thing they did here.

[00:24:47] Speaker 03:
But they have techniques to evaluate airflow across a workout area using tracer gas.

[00:24:56] Speaker 03:
Mr. Beiter and I discussed measuring the pressure drop across the workout area.

[00:25:02] Speaker 03:
They didn't use that.

[00:25:03] Speaker 03:
It would have been really simple to use that.

[00:25:05] Speaker 03:
Well, not simple because you have to set up a tracer gas study, but they didn't do that.

[00:25:12] Speaker 03:
And this whole thing about the smoke test, recognize that what we're talking about, I am standing in a dark mine entry with a cap lamp and out in front of me is a wheeled device I've wheeled out into the end of the perimeter cut

[00:25:33] Speaker 03:
with, I think they said two cap lamps on it.

[00:25:36] Speaker 03:
And I'm sending puffing smoke out there and trying to figure out what it's doing.

[00:25:41] Speaker 03:
And what it did was dissipate, which would suggest to me there was some air movement.

[00:25:46] Speaker 03:
They also took bottle samples from that area, which showed the methane was low and the oxygen was good.

[00:25:57] Speaker 03:
But if you look at those smoke tube tests,

[00:26:01] Speaker 03:
They are suspect right from the get-go.

[00:26:05] Speaker 01:
Can I ask you a question about this, which is, is it your view that the secretary's determination or EMSA's determination, I can't remember who exactly made it, but that the nearby mine couldn't engage in the level of deep cuts that it engaged in suitable appropriately for purposes of ventilation was also

[00:26:31] Speaker 01:
arbitrary and capricious, or do you think that there's a difference between the circumstances involved with that mine and yours?

[00:26:38] Speaker 03:
There aren't enough of the circumstances on the record, Your Honor, to say, but my gut feeling is all three studies, Gateway, Viper, and Nighthawk, are all similarly flawed because of the way they did the studies.

[00:26:56] Speaker 03:
One of the things I want to point out is we're talking about 40-foot perimeter cuts.

[00:27:01] Speaker 03:
Typical miner cut is 20 feet.

[00:27:05] Speaker 03:
I am, Nighthawk would have had as undoubtedly Gateway and Viper would have had the ability to take 40 foot cuts that were not perimeter cuts.

[00:27:17] Speaker 03:
And when you evaluate perimeter for 40 foot cuts, you evaluate the ventilation at the end because what you're doing is you're taking your continuous miner and mining for 40 feet.

[00:27:29] Speaker 03:
Well, it's a dead end no matter what until you make air connections.

[00:27:33] Speaker 03:
But because it's a dead end when you are approving those, you actually do a ventilation study to see if it's ventilated properly at the end.

[00:27:45] Speaker 03:
You can see in the history of the ventilation plans here that the district

[00:27:55] Speaker 03:
views getting a 40 foot cut non-perimeter as a step-by-step process.

[00:28:01] Speaker 03:
That was true in the Prairie State case that was before this court also earlier, that you have to go and prove that you can mine 20 feet, 30 feet, and 40 feet.

[00:28:15] Speaker 03:
There was a comment also that you could have a roof fall, which would obviously

[00:28:23] Speaker 03:
There are two types of liberation.

[00:28:25] Speaker 03:
One is, you know, sort of sudden outburst and the second is a generalized liberation.

[00:28:32] Speaker 03:
We obviously didn't have generalized liberation in this workout area because your methane wouldn't have been at the level.

[00:28:38] Speaker 03:
Even if you had some roof liberate methane, which there was no indication that had been happened in this area, you still don't have an ignition source.

[00:28:49] Speaker 03:
Mr. Hartzog testified that there was no ignition source in the perimeter cuts.

[00:28:57] Speaker 03:
You don't have the right type of rock.

[00:28:59] Speaker 03:
They're not bolted.

[00:29:00] Speaker 03:
So you don't have that argument, which is because sometimes they've argued that roof bolts can spark, but that is not the case sufficiently to ignite methane as I understand it.

[00:29:12] Speaker 03:
But you don't have the potential here that the the secretary

[00:29:18] Speaker 03:
and the district manager did a parade of horribles that simply didn't apply to this area, to this mine.

[00:29:25] Speaker 03:
And one of the things that theoretically mine plans are supposed to be mine specific.

[00:29:33] Speaker 03:
And in this case, the mine specific nature, very low methane.

[00:29:43] Speaker 03:
There are other factors that you can look at here

[00:29:48] Speaker 03:
One of the things is these panels of rooms that where they were doing permanent mining have about 11 month life.

[00:29:56] Speaker 03:
Cause what they do is they mine the rooms and mine up 600 feet and then come back and seal off the area, which means they stop ventilation, but they also don't ever go back in there again.

[00:30:10] Speaker 05:
I don't know the time.

[00:30:12] Speaker 05:
Kind of a fundamental question.

[00:30:16] Speaker 05:
You say that minors don't go into these worked out areas.

[00:30:21] Speaker 05:
Is that correct?

[00:30:22] Speaker 05:
That's correct.

[00:30:23] Speaker 05:
OK.

[00:30:23] Speaker 05:
So who cares whether it blows up or not?

[00:30:27] Speaker 03:
Well, OK.

[00:30:31] Speaker 03:
You care about that.

[00:30:33] Speaker 03:
The inspectors.

[00:30:35] Speaker 03:
Well, the inspectors don't go in there either, Judge.

[00:30:39] Speaker 03:
Once you've mined it out and you are only inspecting the perimeter, the bleeder area, if you had a mine that was susceptible to methane accumulations, which this mine obviously isn't, you could have a methane ignition that would propagate out of this area.

[00:31:00] Speaker 03:
But you simply don't have either the ignition source, because you have no electricity left in there,

[00:31:06] Speaker 03:
and you don't have the ignition sources from any other source, but you can theoretically have an explosion that propagates out of a worked out area.

[00:31:17] Speaker 03:
But in this circumstance, the methane isn't there.

[00:31:24] Speaker 05:
All of the instances in which miners have been injured by methane explosions, were they all ones in which the miners were in the area?

[00:31:38] Speaker 03:
Yeah.

[00:31:41] Speaker 03:
I'm running through my mind, Judge Randolph.

[00:31:45] Speaker 03:
Generally, yes, because I'm thinking of our big branch, the miners were on the longwall face, Willow Creek, the miners were on the longwall face.

[00:32:00] Speaker 03:
But there are varying circumstances over the years, but usually miners are in the area.

[00:32:05] Speaker 04:
Well, let me ask you, if I could, Mr. Moore, you said the inspectors don't go in, of course, after it's sealed.

[00:32:12] Speaker 04:
But does the record show the length of time between when the perimeter cuts are finished and when that worked out area is sealed, when the inspectors would go in?

[00:32:27] Speaker 03:
Let me sort of answer in two parts.

[00:32:29] Speaker 03:
Once it's sealed, they don't go in and it was about an 11 month period from the time they started one of these groups of rooms to the period when they would be sealed.

[00:32:40] Speaker 03:
The inspectors even before it's sealed when there is active mining because they mine a group of rooms to each side and continue in that way.

[00:32:50] Speaker 03:
They don't go into the area that's been worked out and already mined.

[00:32:55] Speaker 03:
They visit the active mining area and they would inspect the bleeder entries around this worked out area.

[00:33:02] Speaker 03:
They would not go into the worked out area.

[00:33:04] Speaker 03:
In fact, there is some testimony that this was barricaded off so that they couldn't get into the worked out area.

[00:33:11] Speaker 03:
And there's nothing going on there.

[00:33:12] Speaker 03:
So there really isn't any reason for them to go.

[00:33:15] Speaker 03:
They go, frankly, where the miners are working.

[00:33:18] Speaker 04:
Okay, but we don't know how long a period of time between the working out of the area and the sealing of it.

[00:33:29] Speaker 03:
It's less than 11 months.

[00:33:31] Speaker 04:
Okay.

[00:33:33] Speaker 04:
Is that in the record?

[00:33:34] Speaker 03:
Yes.

[00:33:35] Speaker 03:
Okay.

[00:33:35] Speaker 03:
Yes, Mr. Haassenstam talked about it.

[00:33:37] Speaker 01:
Okay.

[00:33:39] Speaker 01:
But there is, just to clarify, pick up on what John Henderson was asking you, there is a difference between perimeter mining and non-perimeter mining in that

[00:33:48] Speaker 01:
there's a period during which, with perimeter mining, worked out areas remain accessible and not sealed, right?

[00:33:55] Speaker 01:
They ultimately get sealed.

[00:33:57] Speaker 03:
They ultimately get sealed.

[00:33:58] Speaker 03:
But if we were not to perimeter mine around each one of these rooms, it would still be a worked out area.

[00:34:06] Speaker 03:
And the only place on that group of entries that you would go in is the bleeders around it to check that the air was moving across.

[00:34:16] Speaker 03:
you would not go into the worked out area, even if there were no perimeter mining.

[00:34:20] Speaker 03:
There is no reason to go into that area where there is no mining and the mining is finished.

[00:34:27] Speaker 01:
Okay.

[00:34:28] Speaker 01:
My colleagues don't have further questions for you.

[00:34:30] Speaker 01:
Mr. Moore will.

[00:34:32] Speaker 04:
I do have one, sir.

[00:34:33] Speaker 04:
Does that mean that the worked out area, it's not possible to have a methane leak that either originates there or flows there?

[00:34:45] Speaker 03:
I won't say it's not possible, but it is not likely.

[00:34:53] Speaker 03:
The act of mining, which is where, if you were going to have methane liberated in any way, is further in by or further away from this worked out area.

[00:35:09] Speaker 03:
And you are checking the air coming out of the working where they're actually mining coal on a regular basis and there are fairly low limits.

[00:35:20] Speaker 03:
So it is unlikely you would be getting methane there into this area.

[00:35:27] Speaker 01:
Thank you.

[00:35:27] Speaker 01:
But just to finish out this thought, but the secretary found that with the worked out areas in perimeter mining, there is the possibility of methane in those areas, right?

[00:35:40] Speaker 01:
I think you just think that was wrong.

[00:35:43] Speaker 03:
Well, I when you use the word possibility, your honor, you know, probably anything is possible, but it is not likely.

[00:35:52] Speaker 03:
And that's what the testimony was.

[00:35:54] Speaker 03:
And actually what the district manager should have known that it was wasn't likely because they monitor the methane at the mine.

[00:36:02] Speaker 03:
Every quarter, they evaluate all the methane coming out of the mine at the fan.

[00:36:07] Speaker 03:
So they know what's going on.

[00:36:09] Speaker 01:
Okay.

[00:36:11] Speaker 01:
If my colleagues don't have further questions, thank you, Mr. Moore.

[00:36:14] Speaker 01:
Ms.

[00:36:14] Speaker 01:
Scott, we'll give you the two minutes you asked for for rebuttal.

[00:36:18] Speaker 02:
Thank you, Your Honor.

[00:36:19] Speaker 02:
Just a few points to make.

[00:36:21] Speaker 02:
Judge Randolph, you asked one question about what the record on review is here.

[00:36:26] Speaker 02:
Given how the technical citation process works, you know, I think NIHAL wants to have it both ways.

[00:36:31] Speaker 02:
Where it gets to testify at the hearing, the secretary only gets to rest on, you know, the letters that it sends.

[00:36:37] Speaker 02:
So given

[00:36:38] Speaker 02:
process works, given that there was a commission hearing, the secretary's explanations provided at the hearing are also part of the agency record that are on review.

[00:36:49] Speaker 02:
And second, and this is the broader point.

[00:36:52] Speaker 05:
Well, wasn't the secretary's position that even though the ventilation plan that the company proposed would have been sufficient that the secretary demanded more?

[00:37:09] Speaker 02:
The secretary's position was that the plan, that this plan that was revoked was not suitable for the five reasons that were outlined in the technical citation that it was not.

[00:37:19] Speaker 05:
It was not adequate.

[00:37:20] Speaker 02:
That's correct.

[00:37:24] Speaker 02:
Okay.

[00:37:25] Speaker 02:
And, and the broader point that I want to make here is, is picking up on what Judge Sreenivasan just asked, which is that, you know, fundamentally this case is about the commission simply disagreeing with the conclusions that the secretary reached.

[00:37:37] Speaker 02:
The question though on arbitrary and capricious review is, you know, did the secretary.

[00:37:42] Speaker 02:
make findings that consider the relevant factors, did the secretary provide an explanation?

[00:37:47] Speaker 02:
And as long as that wasn't so inherently unreasonable that it can't possibly be the product of agency expertise, then it really should be affirmed on arbitrary and capricious review.

[00:37:56] Speaker 02:
And the commission's decision misses that point.

[00:37:58] Speaker 02:
Most of the points that NYHAWC has made, they missed that point completely as well.

[00:38:02] Speaker 02:
And that's the fundamental problem with the commission's decision here is that IMSA, the secretary, makes these policy calls about whether the plan is suitable

[00:38:10] Speaker 02:
And that's committed to the secretary by the Mine Act, by his role in the Mine Act split enforcement scheme.

[00:38:16] Speaker 02:
And the commission's decision to the contrary should be set aside.

[00:38:22] Speaker 01:
Thank you, counsel.

[00:38:23] Speaker 01:
Thank you to both counsel.

[00:38:25] Speaker 01:
We'll take this case under submission.