[00:00:00] Speaker 02:
Case number 20-1369, Secretary of Labor, Mine Safety and Health Administration, Petitioner, versus M-Class Mining LLC and Federal Mine Safety and Health Review Commission.

[00:00:12] Speaker 02:
Ms.

[00:00:12] Speaker 02:
Maltz for the petitioner, Mr. Chandler for the respondent M-Class Mining LLC.

[00:00:19] Speaker 05:
All right, good morning, counsel.

[00:00:21] Speaker 05:
Just as a matter of convenience, Judge Henderson has asked me to preside, but she is with us through a conference call.

[00:00:29] Speaker 05:
So, counsel, please proceed.

[00:00:33] Speaker 03:
Good morning.

[00:00:33] Speaker 03:
May it please the court?

[00:00:34] Speaker 03:
I'm Susanna Maltz for the Secretary of Labor.

[00:00:37] Speaker 03:
I'd like to reserve two minutes for rebuttal, please.

[00:00:40] Speaker 03:
Thank you.

[00:00:41] Speaker 03:
Thank you.

[00:00:43] Speaker 03:
Section 103K orders give Emsha complete control over a mine in the event of an accident.

[00:00:49] Speaker 03:
They're among the agency's most powerful tools because they're used to rescue miners and to prevent deaths and injuries.

[00:00:56] Speaker 03:
Here, MSHA properly exercised its plenary power under section 103K when it took control of the M class number one mine after a miner was diagnosed with carbon monoxide poisoning.

[00:01:07] Speaker 03:
Unless the court prefers otherwise, I'll begin with the mootness issue and then I'll move to the standard of review issue.

[00:01:13] Speaker 03:
And then I'll very briefly touch on our argument that even if the commission selected the appropriate

[00:01:18] Speaker 03:
standard of review, they misapplied it.

[00:01:21] Speaker 03:
All right.

[00:01:22] Speaker 03:
So turning to mootness, it's the secretary's position that this case is moot.

[00:01:26] Speaker 03:
The commission was not able to give M-Class any effective relief when it terminated, or excuse me, when it vacated an already terminated K order.

[00:01:38] Speaker 03:
When Emsha terminated that order, M-Class was able to use its air compressor again.

[00:01:43] Speaker 03:
When the commission later vacated that order, there was no material change.

[00:01:48] Speaker 03:
Um, and M class did not get any additional material benefit.

[00:01:54] Speaker 05:
Uh, and to the extent that it did, did it not get the benefit of not having that accident order?

[00:02:00] Speaker 03:
Right.

[00:02:00] Speaker 03:
So it had, yes, it was, there was no longer a terminated K order on the mine's compliance history.

[00:02:07] Speaker 05:
That's right.

[00:02:08] Speaker 05:
And furthermore, it got its equipment back.

[00:02:11] Speaker 05:
And before that, the order had held all that up, correct?

[00:02:15] Speaker 03:
No, Judge, when the order was terminated, it got its equipment back.

[00:02:19] Speaker 03:
When the order was later vacated, it had already had its equipment back.

[00:02:23] Speaker 05:
No, my point is when the order issued, it lost control of its equipment, correct?

[00:02:33] Speaker 05:
And so your point now is that the commission has vacated the order, the case is moved,

[00:02:43] Speaker 03:
Our position is that once the order was terminated, the case was moot.

[00:02:49] Speaker 03:
Vacature didn't additionally change anything.

[00:02:52] Speaker 01:
There's a mine safety retrieval system or data system.

[00:02:58] Speaker 03:
Yes.

[00:02:59] Speaker 01:
And the commission's order was not stayed, was it?

[00:03:03] Speaker 01:
The vacating order?

[00:03:05] Speaker 01:
No.

[00:03:06] Speaker 01:
And yet the mines, the 103 order is still reported in the data system.

[00:03:14] Speaker 01:
Does the secretary have any expungement procedure?

[00:03:21] Speaker 03:
I believe that once the order is vacated, it is expunged from the data system.

[00:03:28] Speaker 01:
It's no longer... But that doesn't happen with this order.

[00:03:30] Speaker 01:
We checked and it's still on the data retrieval system.

[00:03:34] Speaker 03:
I was under the impression that it has been expunged.

[00:03:36] Speaker 03:
There are other terminated orders in the compliance history.

[00:03:41] Speaker 03:
And so if it is there, I'm not sure why.

[00:03:45] Speaker 03:
Vacature typically removes those orders from the compliance history.

[00:03:52] Speaker 05:
And you have a regulation that says that?

[00:03:55] Speaker 03:
No.

[00:03:56] Speaker 03:
I just think that that's typical agency practice.

[00:03:59] Speaker 05:
Well, based on what?

[00:04:02] Speaker 05:
Based on speculation and oral argument, as I understand it.

[00:04:05] Speaker 05:
I understand you're making your best argument, but that's what it is, isn't it?

[00:04:10] Speaker 03:
Yes, Your Honor, that is what it is.

[00:04:12] Speaker 03:
All right.

[00:04:13] Speaker 03:
As far as I know.

[00:04:16] Speaker 03:
It is the Secretary's position, though, that removing that order from the compliance history did not actually confer a non-speculative benefit to M-Class.

[00:04:30] Speaker 03:
They argue that their reputation will be vindicated should that order be removed from the compliance history.

[00:04:38] Speaker 03:
And I have two points in response to that.

[00:04:42] Speaker 03:
First, reputation isn't a cognizable interest under the Mine Act.

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And second, the fact of a terminated K order on a compliance history doesn't suggest wrongdoing.

[00:04:54] Speaker 03:
It doesn't suggest that M-Class was responsible for an accident.

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It only, as the commission says,

[00:04:59] Speaker 03:
suggest that something occurred at the mine.

[00:05:02] Speaker 03:
And so.

[00:05:04] Speaker 05:
So let me ask you just the hypothetical.

[00:05:07] Speaker 05:
Suppose a mine operator is closed down when an accident order issues because a doctor said he thought this patient had was suffering from carbon dioxide poisoning.

[00:05:22] Speaker 05:
All right, and so the inspector operates on that basis of that information, shuts the wind down and months go by.

[00:05:33] Speaker 05:
And the mine operator is trying to get his equipment back, trying to get the agency to act and nothing happens.

[00:05:43] Speaker 05:
As I understand the secretary's position, she can avoid any judicial review

[00:05:52] Speaker 05:
by terminating that order, even if in my hypothetical, it was irrational, or I'll say unreasonable for the inspector to act on the basis of this information, let's say two days after he inspected,

[00:06:19] Speaker 05:
and found no evidence of carbon monoxide poisoning at the mine.

[00:06:26] Speaker 05:
So there is no remedy for the mine operator?

[00:06:29] Speaker 03:
Well, there's expedited review.

[00:06:31] Speaker 03:
The mine operator can seek expedited review.

[00:06:35] Speaker 05:
So here we know he sought it and it was denied.

[00:06:40] Speaker 05:
And the equipment was denied or he was denied access to the equipment for a month.

[00:06:50] Speaker 03:
Yes, that's correct.

[00:06:52] Speaker 03:
But it is an option to pursue, I'm sorry, go ahead.

[00:06:56] Speaker 05:
Go ahead.

[00:06:57] Speaker 03:
It is an option to pursue expedited review and it's not the secretary's position that any order after it's terminated is unreviewable.

[00:07:05] Speaker 03:
And the agency does need to act reasonably.

[00:07:09] Speaker 05:
How would you get review when you're arguing today it's moved because it's been terminated?

[00:07:14] Speaker 03:
Well, I do think that it could fall within an exception to mootness, though it's our position that it doesn't here, which I will get to.

[00:07:24] Speaker 05:
Even though subsequent accident orders have been issued against this mine operator?

[00:07:31] Speaker 03:
I don't know that I understand the question, Judge.

[00:07:32] Speaker 03:
I'm sorry.

[00:07:34] Speaker 05:
I thought you were saying it could come under an exception of capable of repetition, yet evading review.

[00:07:41] Speaker 05:
Yes.

[00:07:42] Speaker 05:
It could, although we know that subsequent orders have been issued against the operator.

[00:07:49] Speaker 03:
Yes.

[00:07:51] Speaker 03:
subsequent orders have been issued and they haven't been challenged and they've been terminated, which I also think suggests that to the extent that M class argues that their reputation is harmed, it's unclear why this particular order would create a reputational injury.

[00:08:06] Speaker 05:
Well, let me just hypothetical say what the operator is concerned about is he's been without his equipment for a month.

[00:08:14] Speaker 05:
All right.

[00:08:15] Speaker 05:
And it's all well and good.

[00:08:19] Speaker 05:
you know, that the order has been terminated and now vacated.

[00:08:22] Speaker 05:
But he has no way to get the agency to act because he did seek expedition.

[00:08:31] Speaker 03:
Yes, I the agency must be reasonable in its in its exercise of its power under Section 103.

[00:08:39] Speaker 03:
I'm sorry.

[00:08:40] Speaker 03:
I see I'm over my time.

[00:08:42] Speaker 05:
Please continue.

[00:08:44] Speaker 03:
I

[00:08:46] Speaker 03:
The agency needs to be reasonable in its exercise of 103K power.

[00:08:51] Speaker 03:
That's what abusive discretion review requires.

[00:08:54] Speaker 03:
But if I understand your question correctly, I apologize.

[00:09:02] Speaker 03:
I don't know that I understand your question.

[00:09:04] Speaker 05:
All right, why don't we hear from counsel?

[00:09:06] Speaker 01:
Well, I have two questions.

[00:09:08] Speaker 05:
Oh, sorry.

[00:09:08] Speaker 05:
Sorry, Judge.

[00:09:09] Speaker 01:
I have two questions.

[00:09:11] Speaker 01:
First of all, what is your position with respect to vacating not only the commission's decision, but also the ALJ's and the order itself, if it's moot?

[00:09:25] Speaker 03:
If it's moot, we would ask that, um, this court require the commission to vacate it for, or excuse me, to dismiss the case for lack of jurisdiction.

[00:09:34] Speaker 03:
And then that would require, I think the commission to require the ALJ to dismiss for lack of jurisdiction as well.

[00:09:41] Speaker 03:
And then the order would be, um, would be valid and unchallenged.

[00:09:47] Speaker 01:
It would be vague.

[00:09:48] Speaker 01:
Well, the order would be vacated if you can't challenge the way of precedent saying,

[00:09:53] Speaker 01:
If an administrative agency issues an order and it can't be judicially reviewed because of mootness, the order has to be vacated.

[00:10:06] Speaker 03:
I think that here the order would have been terminated already.

[00:10:10] Speaker 01:
And so that would that would draw this distinction between termination and vacating.

[00:10:16] Speaker 01:
I'm just wondering whether we have a case or controversy.

[00:10:19] Speaker 01:
You want the order vacated.

[00:10:21] Speaker 01:
It seems to me if the case is moot, the order gets vacated and the mind wants the order vacated.

[00:10:27] Speaker 01:
And if the case is moot, the order gets vacated.

[00:10:30] Speaker 01:
So you both win.

[00:10:31] Speaker 03:
We don't want the order vacated.

[00:10:33] Speaker 03:
We'd like the order validated.

[00:10:34] Speaker 03:
OK.

[00:10:35] Speaker 01:
All right.

[00:10:37] Speaker 01:
The next question I have, the last one is, is there any provision or any practice, we're worried about reputational injury, to vacate not, when there's mootness, to vacate not only the commission's decision, but also the ALJ's?

[00:10:57] Speaker 03:
I think that if the commission's decision is vacated- I don't mean vacate, I'm sorry, expunge.

[00:11:05] Speaker 01:
expunge the commission's decision, expunge the ALJs, because that's public knowledge and anybody reading it would think, well, maybe something happened.

[00:11:15] Speaker 01:
Who knows?

[00:11:15] Speaker 03:
I don't know whether there is, Judge.

[00:11:18] Speaker 03:
I'm sorry.

[00:11:20] Speaker 04:
OK.

[00:11:20] Speaker 04:
Don't you want to go even more basic than that, Judge Randolph, to the 103K order itself?

[00:11:32] Speaker 01:
Yes, exactly.

[00:11:34] Speaker 01:
That's what I was trying to get to.

[00:11:35] Speaker 01:
Yeah.

[00:11:36] Speaker 03:
So I apologize.

[00:11:38] Speaker 03:
I think that the vacatur would expunge the order, but vacatur would also suggest that the order was invalid as issued.

[00:11:46] Speaker 03:
And it's our position that the order was validly issued.

[00:11:48] Speaker 03:
And so when an order is validly issued and then terminated.

[00:11:52] Speaker 01:
No, no, no, no, no, no, no.

[00:11:52] Speaker 01:
Because if we

[00:11:55] Speaker 01:
issue an order saying the case is moot and what the consequences of that would be.

[00:12:02] Speaker 01:
Anybody who really cared about it would know that the order was vacated not because it was invalid or invalid, but because the case was moot.

[00:12:13] Speaker 03:
Well, we wouldn't ask for the order to be vacated.

[00:12:15] Speaker 03:
Our position is that the order is valid and that the proceedings should be dismissed as moot.

[00:12:25] Speaker 01:
Okay.

[00:12:29] Speaker 05:
All right.

[00:12:30] Speaker 05:
Council for responded.

[00:12:34] Speaker 00:
Morning.

[00:12:37] Speaker 00:
Justin Chandler on behalf of respondent in class mining LLC.

[00:12:40] Speaker 00:
Um, I want to first briefly touch the issue of mootness and why we believe this case is not moved first.

[00:12:47] Speaker 00:
Um, I said in class assault, um, vacator of this order.

[00:12:52] Speaker 00:
Um, when it's noticed a contest, it's off for the order to be vacated.

[00:12:55] Speaker 00:
Then it moved for an expedited hearing, which was denied.

[00:12:59] Speaker 00:
So

[00:12:59] Speaker 00:
The secretary's position that this order being terminated somehow renders it moot.

[00:13:04] Speaker 00:
We disagree with because termination simply means that the condition no longer exists.

[00:13:09] Speaker 00:
Whereas make a tour is appropriate remedy for the operator when the order was erroneously issued, which we believe in the commission held that this order was erroneously issued because it was not predicated on the occurrence of an accident.

[00:13:23] Speaker 00:
As far as the standard of review,

[00:13:28] Speaker 05:
Well, can I just ask you a preliminary question then?

[00:13:30] Speaker 05:
As I understand the secretary's position, she appreciates the fact that initial understandings of a situation can change when the inspector conducts an examination, but that the purpose of the 103k order is to essentially assert the secretary's authority

[00:13:54] Speaker 05:
for that period of time until the inspection is continued and the secretary knows basically where she is.

[00:14:05] Speaker 05:
So why wouldn't we defer to that interpretation of the secretary's interpretation of her own

[00:14:12] Speaker 00:
Well, two responses that judge first would be, um, we feel like the, uh, statutory text and what three K is clear that an accident must actually issues of a one oh three K in the second.

[00:14:25] Speaker 00:
And the commission made this clear in their decision.

[00:14:27] Speaker 00:
They weren't trying to limit inches ability to respond to apparent accidents.

[00:14:32] Speaker 00:
Instead, what the commission held was interest presented with an incident which may be an accident, which Amcha believes warrants a K go issue the K order.

[00:14:41] Speaker 00:
However,

[00:14:44] Speaker 00:
up their investigation a revealed no evidence that the appropriate remedy in

[00:14:54] Speaker 00:
So that would be my two responses to that.

[00:14:56] Speaker 00:
But going back to the standard of review, and this kind of ties in as well.

[00:15:02] Speaker 01:
What is the standard that the secretary must follow?

[00:15:08] Speaker 01:
You know, I think of the analogy of a search warrant.

[00:15:12] Speaker 01:
You don't have to prove that a crime has been committed just probable cause.

[00:15:17] Speaker 01:
And even if a later investigation reveals that the individual is innocent of any offense, it doesn't mean the search warrant was invalid.

[00:15:27] Speaker 01:
Isn't that analogy true here?

[00:15:30] Speaker 00:
I think I could draw a distinction this way.

[00:15:32] Speaker 00:
Judge Randolph in that in the search for an example that weren't itself may be valid, but the person wasn't charged with a crime here in class was was publicly on his public record.

[00:15:43] Speaker 00:
It indicates that an accident occurred on February 24 2018 at the mine, so it did have necessarily penal but it did have.

[00:15:52] Speaker 00:
It wasn't just subject to like the person subject to the search warrant.

[00:15:56] Speaker 00:
It was actually subjected to enforcement action as a result of that case.

[00:16:01] Speaker 00:
And that portion of the mine was closed for a period of time and its equipment was voluntarily removed for over a month.

[00:16:09] Speaker 01:
The same thing would happen with a search warrant and items are seized for a month or two months or whatever.

[00:16:21] Speaker 00:
Right, again, but if I understand you correctly, I think with the search warrant, if they're not charged with a crime, as opposed to here where M-Class was charged on the record with having an accident occurred at the mine, that's how I would try to distinguish the two.

[00:16:38] Speaker 05:
But again, the second- So to the extent you were seeking vacator, and that's what the commission gave you,

[00:16:49] Speaker 05:
Judge Randolph has suggested, well, is there even a case of controversy?

[00:16:53] Speaker 05:
But of course our orders said address mootness.

[00:16:59] Speaker 05:
And my questions basically were focusing on, can the secretary act in a way that basically avoids any judicial review?

[00:17:10] Speaker 00:
Well, I think that's what, I think that's what they tried to do.

[00:17:13] Speaker 00:
The secretary tried to do here at Judge Rogers.

[00:17:15] Speaker 00:
I think they tried to avoid review by terminating the order and then move into dismissed on the basis of the termination.

[00:17:20] Speaker 00:
However, we feel like the MIND Act provides a further remedy in vacator because it was erroneously issued.

[00:17:26] Speaker 00:
Erroneously issued citations and orders under the MIND Act are vacated, not terminated.

[00:17:31] Speaker 00:
In fact, many contested citations and orders in the MIND Act are terminated prior to hearing before they're ultimately vacated or sustained by the ALJ.

[00:17:41] Speaker 04:
Mr. Chancellor, do you have any injury other than the fact that it's still, whether erroneously or not, on the record, other than the reputational?

[00:17:53] Speaker 04:
It doesn't count toward anything in your operating history, does it?

[00:18:01] Speaker 00:
That's correct, Judge Henderson.

[00:18:02] Speaker 00:
That does not, however, it does remain on the record as an accident occurring, and we believe could be subject to additional enforcement action to be taken against him.

[00:18:10] Speaker 00:
Class, as the commission noted, unlikely here because we're three years removed from the incident.

[00:18:15] Speaker 00:
A terminated 103 could be modified, and it could serve as the basis for enforcement action under 104 against the operator.

[00:18:25] Speaker 00:
So we think there is

[00:18:26] Speaker 00:
harm other than the reputational harm sustained by this this order remaining on in classes record.

[00:18:33] Speaker 01:
Sorry, go ahead.

[00:18:37] Speaker 00:
I'm sorry.

[00:18:38] Speaker 04:
What is the collateral effect of this other than well reputational

[00:18:43] Speaker 00:
So the order could, although unlikely in this case, because we're three years removed from the incident that brought this case about, it could be later modified.

[00:18:53] Speaker 00:
So a terminated 103K could be modified.

[00:18:56] Speaker 00:
So a situation could arise where a retrofit to the compressor, for instance, is an issue in this case, and you could modify that K in demand that the operator implement the retrofit for carbon monoxide emissions, and the operator may not want to do that.

[00:19:13] Speaker 00:
So that's one way they can continue to be harmed.

[00:19:15] Speaker 00:
And again, the accident remaining on M-Class' public record isn't just a matter of reputational harm.

[00:19:24] Speaker 00:
It could factor into the accident.

[00:19:28] Speaker 00:
Had it been within the most recent 12 months, however, we're three years from this incident.

[00:19:33] Speaker 00:
So that's no longer an issue for M-Class specifically.

[00:19:39] Speaker 05:
Well, in this case, correct me if I'm wrong,

[00:19:44] Speaker 05:
And I need to be clear on the chronology.

[00:19:47] Speaker 05:
After the inspector determined that no accident had occurred as he originally thought based on the doctor's statement, the operator was still required to prepare a plan.

[00:20:06] Speaker 05:
And the first plan was not satisfactory.

[00:20:08] Speaker 05:
The second plan was not satisfactory.

[00:20:12] Speaker 05:
So if in fact the inspector found there was no accident, then what was the basis for his requiring the operator to come up with these plans?

[00:20:27] Speaker 05:
Or is that just a standard operating procedure of any time an inspector looks at a mine, he has the authority or she has the authority to require the operator to

[00:20:41] Speaker 05:
provide, you know, plans of safe operation.

[00:20:46] Speaker 00:
We believe that that was absolutely unreasonable action by inch in this situation because the inspector's investigation didn't reveal any evidence of carbon monoxide exposure.

[00:20:56] Speaker 00:
So all the evidence that he discovered rebutted what was in that initial escalation report from the doctor.

[00:21:02] Speaker 00:
He didn't

[00:21:03] Speaker 00:
any corroborating evidence whatsoever to base the modifications and take the, as a matter of fact, he tested the compressor underground before issuing the modification, taking it out of service.

[00:21:16] Speaker 00:
So Imtia knew the night after the order was issued or hours after the order was issued that the compressor was not emitting elevated levels of carbon monoxide.

[00:21:24] Speaker 00:
They didn't have any reasonable basis to remove the compressor for service.

[00:21:28] Speaker 00:
And they certainly didn't have a reasonable basis to keep it out of service for a month.

[00:21:31] Speaker 05:
What was the plan?

[00:21:33] Speaker 05:
What was the substance of the plan that was required?

[00:21:36] Speaker 00:
The substance of the plan and that can be found I believe in JA20, excuse me, JA1417.

[00:21:46] Speaker 00:
The substance of the plan essentially was Hampshire was wanting to

[00:21:54] Speaker 00:
make MCLAS put in additional measures when using their compressor, which either A, they were already required to do so by law, or B, in response to this particular event, they didn't know what they could do to prevent reoccurrence because there was no evidence that the event occurred.

[00:22:15] Speaker 00:
So the only thing that MCLAS wanted in the plan was basically what MCLAS was already required to do by law.

[00:22:28] Speaker 00:
That's officially answered your question.

[00:22:30] Speaker 00:
I'm sorry.

[00:22:31] Speaker 05:
Thank you.

[00:22:31] Speaker 05:
Yes.

[00:22:31] Speaker 05:
No.

[00:22:34] Speaker 05:
Do my colleagues have anything further.

[00:22:35] Speaker 01:
I don't know.

[00:22:38] Speaker 05:
Anything further counsel.

[00:22:42] Speaker 05:
No.

[00:22:43] Speaker 05:
Thank you.

[00:22:43] Speaker 05:
All right.

[00:22:45] Speaker 05:
Let us hear from the secretary.

[00:22:47] Speaker 03:
Thank you.

[00:22:49] Speaker 03:
Just a few points to make.

[00:22:50] Speaker 03:
I want to address the argument that a terminated K order could be modified to impose additional enforcement actions.

[00:22:58] Speaker 03:
That's not the case.

[00:22:59] Speaker 03:
A terminated K order cannot be modified.

[00:23:03] Speaker 03:
The commission suggested that it could and then cited cases that have to do with section 104 citations and orders, which can be modified following termination.

[00:23:16] Speaker 03:
often they're modified in settlement, I think.

[00:23:20] Speaker 03:
But a 103k order, the purpose of the 103k is to give Emsha control over the mine.

[00:23:26] Speaker 03:
And so once that order is terminated, that means that there's no longer a need to have control over the mine and there's nothing further that can be modified.

[00:23:37] Speaker 03:
So there's no risk that Emsha would go back and modify this terminated k order

[00:23:45] Speaker 05:
What is the nature of these plans that were required?

[00:23:51] Speaker 03:
I think that there was a discussion between the operator and Emsha on these plans and I'm under the impression that the operator wanted its equipment back and Emsha was proposing intermediary measures while it conducted

[00:24:07] Speaker 03:
An inspection of the equipment.

[00:24:10] Speaker 05:
I'm afraid I don't this lasted over a month.

[00:24:13] Speaker 03:
Yes, and the and the inspection of the equipment lasted over a month.

[00:24:16] Speaker 03:
It's not the case that that I'm sure knew immediately that the equipment wasn't emitting carbon monoxide and I don't know that I'm sure ever conclusively I don't know that I'm sure concluded that the equipment certainly wasn't emitting carbon monoxide that they conducted a thorough investigation.

[00:24:32] Speaker 03:
They were under the impression that that the the air compressor, because it was a diesel powered air compressor was likely the source of the carbon monoxide poisoning and so for a month, they conducted these these tests.

[00:24:44] Speaker 05:
They did not want to put plans.

[00:24:46] Speaker 05:
I'm afraid I don't know the details of the plans, Judge, but I think that's- No, I don't need details, but why were the plans required if it was just a matter of MSHA doing the investigation?

[00:24:58] Speaker 03:
I think that typically in the context of a 103k order, there is back and forth between the operator and MSHA about intermediary solutions.

[00:25:07] Speaker 03:
I think that's standard.

[00:25:10] Speaker 03:
Although I'm afraid I don't know the details.

[00:25:12] Speaker 05:
You know this case right?

[00:25:14] Speaker 05:
Yes.

[00:25:15] Speaker 05:
What happened here?

[00:25:16] Speaker 03:
I'm not clear on on what the what Amsha

[00:25:20] Speaker 03:
spoke with the operator about or would have required, but I do know that the operator insisted on having its equipment back and Emshel wasn't willing to release the equipment to the operator.

[00:25:29] Speaker 05:
No, I understand all that, but it also, according to the brief, said that the operator submitted one plan that wasn't satisfactory.

[00:25:39] Speaker 05:
He submitted another plan that wasn't satisfactory.

[00:25:41] Speaker 03:
Yes, I don't know the details of those plans.

[00:25:44] Speaker 03:
Well, would that affect our analysis of rootness at all?

[00:25:48] Speaker 03:
No, I don't think that it would.

[00:25:52] Speaker 03:
And then just another point to make.

[00:25:54] Speaker 05:
I mean, I'm just trying to pressure you so I understand how far the secretary goes on this.

[00:25:58] Speaker 05:
Suppose I'm the mine operator and I want my equipment back and the inspector says, yes, but I need a plan.

[00:26:06] Speaker 05:
And the inspector says, I want the plan to have five things in it.

[00:26:09] Speaker 05:
And I say, that's gonna cost me half a million dollars.

[00:26:12] Speaker 05:
Inspector says, I want that plan.

[00:26:14] Speaker 05:
And you don't get your equipment back until I get that plan.

[00:26:18] Speaker 05:
I just want to understand what's happening in this situation.

[00:26:21] Speaker 05:
It may be fine that the inspector needs a month to test the equipment, but it's not the same as requiring the operator to come up with a plan.

[00:26:33] Speaker 05:
It's a safety plan?

[00:26:35] Speaker 03:
I think that it's an intermediary plan.

[00:26:38] Speaker 03:
I think that it's- But we don't know.

[00:26:41] Speaker 05:
Okay.

[00:26:42] Speaker 05:
No.

[00:26:42] Speaker 05:
So all we can do is look at 1417 of the record and see what's there.

[00:26:48] Speaker 03:
Yes, and I apologize about that.

[00:26:52] Speaker 03:
And then I just briefly wanted to address the fact that the Commission does say, and Mr. Chandler referenced this, that an inspector acting in good faith could issue a K order under these circumstances

[00:27:10] Speaker 03:
If it were later vacated, and that doesn't make sense for a few reasons.

[00:27:16] Speaker 03:
The commission's holding is essentially that I'm sure doesn't have authority to issue a K order at the outset of an accident.

[00:27:26] Speaker 03:
that suggests that there was, that concludes that an accident occurred.

[00:27:32] Speaker 03:
And this is a significant limitation on EMSA's plenary power under 103K.

[00:27:38] Speaker 03:
And I think I may have made this point earlier, but vacatur implies that the order was erroneously issued and that the inspector should have done something differently.

[00:27:49] Speaker 03:
But I think that all parties agree.

[00:27:51] Speaker 03:
Oh, I apologize.

[00:27:52] Speaker 03:
I see that I think I may be over my time.

[00:27:55] Speaker 03:
You want to finish your sentence?

[00:27:56] Speaker 03:
Yes, thank you.

[00:27:59] Speaker 03:
Vacature implies that the inspector should have done something differently, but I think all the parties agree that the inspector acted correctly here.

[00:28:05] Speaker 03:
And finally, the fact that the commission would allow

[00:28:12] Speaker 03:
an inspector to issue a K order as long as he later vacates it suggests that the agency would be required to engage in unlawful action repeatedly and then erase it somehow and that doesn't make sense.

[00:28:25] Speaker 05:
So understand or provide me with an understanding of what happens if we dismiss this case as moot and the discussion that Judge Randolph was having with you, we would vacate

[00:28:37] Speaker 05:
I don't know, I don't wanna put this in the word judge, in the judge's mouth, but what would happen to the commission decision?

[00:28:44] Speaker 05:
What would happen to the ALJ decision?

[00:28:47] Speaker 05:
And where does the mine operator stand?

[00:28:51] Speaker 03:
So the commission decision would be dismissed for lack of, or sorry, would be reversed and dismissed for lack of jurisdiction.

[00:29:00] Speaker 03:
And that would happen to the ALJ decision as well.

[00:29:03] Speaker 03:
And then- So they're both on the books.

[00:29:08] Speaker 03:
Yes.

[00:29:09] Speaker 05:
So if the mine operator in the future

[00:29:15] Speaker 05:
is subject to a 104 enforcement action.

[00:29:19] Speaker 05:
This history is relevant.

[00:29:22] Speaker 03:
Well, a terminated K order would be on the books, but the terminated K order wouldn't have an effect on any enforcement under 104.

[00:29:34] Speaker 03:
It wouldn't contribute to any penalties.

[00:29:36] Speaker 03:
It wouldn't be taken into account.

[00:29:39] Speaker 03:
It's just because it's terminated,

[00:29:42] Speaker 03:
there's a record that it occurred and then was terminated.

[00:29:45] Speaker 03:
That's the only consequence.

[00:29:49] Speaker 03:
And that's, I think, how it would how it would stand once the once the so the operator doesn't get the record cleared.

[00:29:57] Speaker 04:
No, unless we vacate the 103 K order.

[00:30:02] Speaker 03:
Yes.

[00:30:04] Speaker 04:
Thank you.

[00:30:05] Speaker 03:
Thank you.

[00:30:07] Speaker 03:
And thank you.

[00:30:08] Speaker 03:
Anything further?

[00:30:10] Speaker 03:
Council?

[00:30:11] Speaker 03:
No, thank you, Judge.

[00:30:13] Speaker 05:
All right, we'll take the case under advisement.

[00:30:15] Speaker 05:
Thank you.