[00:00:00] Speaker 05:
Case number 23-1242, Peabody Midwest County MLC, and Michael Butler, employee of my Peabody Northwest County MLC petitioners, personal secretary of labor, line safety and health administration, MSHA, and federal line safety and health review commission.

[00:00:17] Speaker 05:
Mr. Moore for the petitioners, Ms.

[00:00:19] Speaker 05:
Maltz for the respondents.

[00:00:24] Speaker 01:
May it please the court?

[00:00:27] Speaker 01:
Case involves a number of issues

[00:00:31] Speaker 01:
But it comes down to whether or not the two violations that the commission found were properly designated as unwarrantable and whether or not individual felonies should have been assessed against Mr. Butler.

[00:00:49] Speaker 01:
Recognize what we have here.

[00:00:53] Speaker 01:
We are dealing with the actions of a mind foreman when a drilling crew was drilling

[00:00:59] Speaker 01:
to find a location of another mine if it was adjacent to or too close to the mine.

[00:01:06] Speaker 01:
He was called to the area.

[00:01:08] Speaker 01:
He had no idea what he was getting into.

[00:01:10] Speaker 01:
When he walked in, there was noise because the air was coming out of the borehole.

[00:01:17] Speaker 01:
He did not expect what was occurring.

[00:01:20] Speaker 01:
He had taken a maintenance foreman with him because he thought there was a problem with the drill.

[00:01:25] Speaker 01:
When he got there, he went, came into the area,

[00:01:30] Speaker 01:
in by, and if I confuse anybody with in by and out by, please let me know.

[00:01:35] Speaker 01:
We did define it, but essentially it's a directional term.

[00:01:39] Speaker 01:
He came into the area, in by the drill, and walked up to the driller and said, what have we got here?

[00:01:48] Speaker 01:
Driller told him, and he said, what's the procedure?

[00:01:50] Speaker 01:
And he said, plug the hole.

[00:01:54] Speaker 01:
But what he did at that point is let the driller and his assistant try to go ahead and plug the hole.

[00:02:01] Speaker 01:
And what he did, and at that point they were already starting the process of pulling drill seals out of the hole so they can push a plug in.

[00:02:12] Speaker 04:
Mr More, if you could just help me to understand some of the terminology here.

[00:02:17] Speaker 04:
Is it your position that the action of plugging the borehole is a type of ventilation work?

[00:02:25] Speaker 01:
Yes, it is.

[00:02:26] Speaker 01:
Because while you don't typically, if you're up at the face of the mine and you have excessive methane, you can't do anything to stop that.

[00:02:36] Speaker 01:
But in this case, you can prevent the methane from coming into the airstream.

[00:02:41] Speaker 01:
So it is, in fact, ventilation.

[00:02:44] Speaker 04:
Is it ventilation work in the meaning of the regulation?

[00:02:48] Speaker 04:
I mean, I understand it's an action designed to lower the levels of methane.

[00:02:54] Speaker 04:
But is it ventilation work?

[00:02:59] Speaker 01:
Well, when you are doing ventilation work, you're doing any number of things.

[00:03:04] Speaker 01:
putting up curtains to direct air.

[00:03:05] Speaker 01:
You're putting up stoppings to separate airways.

[00:03:10] Speaker 01:
Uh, if you are dealing with areas of the mine that are sealed, you may well be installing seals, additional seals.

[00:03:21] Speaker 01:
If you are dealing with an area behind, which we don't have here, a long wall panel, you may be doing things to prevent methane coming out of

[00:03:31] Speaker 01:
the area behind the longwall panel into the airstream in the mine.

[00:03:36] Speaker 01:
So in that sense, if you're stopping methane, you don't normally have the chance to stop methane, but if you are stopping methane as you would, for example, coming out of a longwall gun, it's the same thing as I see it.

[00:03:49] Speaker 03:
So ventilation in your reading includes plugging.

[00:03:53] Speaker 01:
Includes plugging in this instance.

[00:03:56] Speaker 01:
Now recognize, of course, this is an unusual case.

[00:04:01] Speaker 01:
And the application of these standards to this are unusual.

[00:04:06] Speaker 01:
And that's the part of the problem with it.

[00:04:09] Speaker 00:
It may be an unusual case, but the regulation seems just very clear.

[00:04:16] Speaker 00:
I mean, the one thing you have to do when the methane level exceeds 1.5% is shut down the electrical.

[00:04:25] Speaker 00:
Well, when

[00:04:30] Speaker 00:
They got you might have an argument that there's some a textual defense that if you have to violate the rule in the interests of safety, you can do it.

[00:04:41] Speaker 01:
But I don't see any argument that well, it's interesting because I, uh, I was looking at this involved.

[00:04:51] Speaker 01:
75-323-C2.

[00:04:52] Speaker 01:
C1, which is just- C2-Romanet-2.

[00:04:58] Speaker 00:
Yes.

[00:04:58] Speaker 00:
It says shut off the electrode.

[00:05:00] Speaker 01:
Well, yes, but it's the collective C2.

[00:05:03] Speaker 01:
But C1 says if methane's over 1%, you're supposed to make changes and adjustments to ventilation.

[00:05:12] Speaker 01:
How you factor that in with C2 is an interesting question because of the reference to other work.

[00:05:18] Speaker 03:
It is interesting because- C1 is the one that's when it's 1% or more.

[00:05:23] Speaker 03:
1% or more.

[00:05:25] Speaker 03:
Right, so it's 1% or more.

[00:05:26] Speaker 03:
So within that, if it's at non-dangerous but potentially mounting, then you make adjustments.

[00:05:36] Speaker 03:
But then 1.5, whether C1

[00:05:42] Speaker 03:
applies up above 1.5 or not, C2 is clear, I think as Judge Katz was saying, that everyone shall be withdrawn, power shall be disconnected, and no other work other than withdrawing people and disconnecting power can occur until the methane concentration is less.

[00:06:10] Speaker 01:
Everyone should be withdrawn except those who are permitted to remain in order to eliminate.

[00:06:16] Speaker 03:
Well, except those who are working to withdraw people and turn off power, I think is how the commission reads it.

[00:06:32] Speaker 01:
That's the way I read it, but there is the C1, excuse me, C2 single eye that says the people who are working to eliminate the hazard may remain in the area.

[00:06:45] Speaker 01:
And let's take the situation, they de-energize the drill and they remove everybody except those people who might be necessary to address the hazard.

[00:06:59] Speaker 01:
They could stand there, they can monitor it.

[00:07:01] Speaker 01:
We know that the,

[00:07:03] Speaker 01:
Methane was going up and down, and they could stand there and monitor it.

[00:07:08] Speaker 01:
If we were not under 1%, they could then fire up the drill and go back to what they were doing.

[00:07:13] Speaker 01:
And the interesting thing is, while we keep talking about the commission and their secretary, talk about 5%.

[00:07:20] Speaker 01:
We know it wasn't 5% most of the time, because the drill would shut down at 2%.

[00:07:31] Speaker 01:
And in fact, the inspector said when they were trying to plug the hole and they were drilling, it was probably 1.1 to 1.2%.

[00:07:38] Speaker 01:
So we know that for at least a period where they were pulling most of the drill steel, the methane was under 2%.

[00:07:51] Speaker 01:
We don't know exactly what it was.

[00:07:53] Speaker 01:
We have the judge saying he can't tell how long it was above 1.5%.

[00:08:02] Speaker 01:
So we have a situation that they're trying to deal with.

[00:08:07] Speaker 01:
Now, the inconsistency that we have in this case is the judge says what Mr. Butler was doing was laudable, admirable, and he did it in good faith.

[00:08:21] Speaker 01:
And yet, the same judge and the commission then turn around and say, well, yeah, it was all those things, but it was aggravated conduct.

[00:08:28] Speaker 03:
Well, because commission precedent only recognizes a defense where an operator has a good faith and reasonable belief that the cited conduct is the safest method of compliance.

[00:08:39] Speaker 03:
And I think that the LJ is recognizing people who make mistakes, but that it is still

[00:08:45] Speaker 03:
a mistake in the sense that it's not reasonable under the regulations.

[00:08:48] Speaker 01:
Well, I would disagree that it was unreasonable for two reasons.

[00:08:54] Speaker 01:
One is they're trying to prevent a greater hazard.

[00:08:57] Speaker 03:
How so?

[00:08:58] Speaker 03:
The hazard is measured with respect to minors.

[00:09:01] Speaker 03:
How is it a greater hazard to turn everything off and leave?

[00:09:05] Speaker 03:
What's the hazard to humans?

[00:09:07] Speaker 01:
Well, that means methane will be pouring out.

[00:09:09] Speaker 03:
Right.

[00:09:10] Speaker 03:
With nobody around.

[00:09:11] Speaker 01:
Well, yes and no.

[00:09:15] Speaker 01:
because, all right, you evacuate the mine.

[00:09:18] Speaker 01:
Let's say the methane goes out in the return and does what the inspector thought it might do, which is get sucked back into the mine on the intake because both the intake and the return terminate out in the pit.

[00:09:31] Speaker 03:
And I'm sorry, because we are taking the limited time.

[00:09:35] Speaker 03:
You said he's acting to avoid a greater hazard.

[00:09:38] Speaker 03:
And really the question I have for you on that point is,

[00:09:42] Speaker 03:
There are these two different defenses, the greater hazard defense and the diminution of safety issue.

[00:09:50] Speaker 03:
And you objected to diminution of safety because that requires a filing or a contact with IMSA that you claim was unreasonable.

[00:09:57] Speaker 03:
But the greater hazard seems to me to be the way around that cumbersome procedural requirement.

[00:10:04] Speaker 03:
But it also, A, I didn't see you phrasing that meaningfully before the commission, and B, even

[00:10:12] Speaker 03:
you have to argue that all the elements of that are met.

[00:10:22] Speaker 03:
I don't think you've met them here.

[00:10:25] Speaker 01:
Well, first of all, I think the diminishing of safety defense and the greater hazard defense really are one and the same.

[00:10:33] Speaker 01:
Because if I think application of the standard diminishes safety,

[00:10:37] Speaker 01:
That means there's a hazard from application to standard that is frankly greater than what they're trying to do.

[00:10:47] Speaker 03:
Well, so if they're the same, then there's precedent that the defense requires that the process be modified because the hazards of compliance are greater

[00:11:01] Speaker 03:
than the hazards of the proposed non-compliant action, and that there's no alternative means to protect minor safety.

[00:11:10] Speaker 03:
And here the question is, why is it not a means of protecting minor safety to evacuate everybody and turn everything off?

[00:11:19] Speaker 01:
Well, the means available to protect minor safety were what they were doing, which was putting more air over the air that was coming out of the borehole.

[00:11:31] Speaker 01:
and they did that by redirecting it with a curtain and also by taking the air from the adjacent entry and directing it over to the drill area so there would be a full amount of air coming through there.

[00:11:48] Speaker 01:
They also, they had the people from the adjacent section leave.

[00:11:53] Speaker 03:
Was there coal production going on that night?

[00:11:56] Speaker 03:
It was unclear to me.

[00:11:57] Speaker 01:
There was coal production.

[00:11:58] Speaker 01:
You should understand the drill is in zero entry.

[00:12:03] Speaker 01:
And to get to the section, you would go over three or four entries to get to the travel way into the section.

[00:12:11] Speaker 01:
There was coal production.

[00:12:13] Speaker 01:
And in fact, it was in by where the drill was working.

[00:12:18] Speaker 01:
Now, they stopped coal production, they pulled the equipment back, they de-energized it, and they de-energized it, pulled the power out by it.

[00:12:28] Speaker 03:
So if the plugging had been effective that night, presumably they could have brought the people back, was it in Zone 3?

[00:12:39] Speaker 01:
If the plugging had been effective, effective, excuse me, and that people had been evacuated from the mine,

[00:12:48] Speaker 01:
while it's not necessarily clear from 75, 360, and 361 and two, you would have done an examination of the mind.

[00:13:00] Speaker 01:
Now I will tell you practically what would have happened.

[00:13:03] Speaker 01:
This happened at two o'clock in the morning.

[00:13:05] Speaker 01:
The normal free shift for the next shift starts at five o'clock.

[00:13:09] Speaker 01:
They wouldn't have brought those people back in.

[00:13:14] Speaker 01:
If they plugged it, now,

[00:13:18] Speaker 01:
Let me also say, particularly with respect to Mr. Parker, he happened to be in the adjacent section.

[00:13:27] Speaker 01:
He was only a couple entries away.

[00:13:31] Speaker 01:
If he had been in the other section and they called him there and he'd come over, probably they would have had it plugged by the time he got there without the things that he directed be done.

[00:13:46] Speaker 01:
It's happenstance.

[00:13:48] Speaker 01:
He did what he thought was the best thing to do.

[00:13:52] Speaker 01:
And obviously the commission disagreed, but looking at it, there should be consideration for the fact that he acted in good faith, though they disagree with it.

[00:14:07] Speaker 01:
And what he did was characterized as good.

[00:14:11] Speaker 03:
Right.

[00:14:12] Speaker 03:
And these are not easy jobs.

[00:14:14] Speaker 03:
With respect to Mr. Butler's personal liability, you're not challenging the ALJ's application of the knowingly standard in North Shore mining.

[00:14:26] Speaker 01:
No, we are not.

[00:14:31] Speaker 00:
On unwarrantable failure, which requires some relatively high degree of culpability,

[00:14:40] Speaker 00:
Um, is the inquiry does the inquiry focus on the rest of the reasonableness of how, um, Mr Butler read the regulation or the reasonableness of his safety judgments or both?

[00:15:02] Speaker 01:
It has to be both.

[00:15:04] Speaker 01:
I mean, I haven't thought of what is required is aggravated conduct.

[00:15:10] Speaker 01:
and which is more than ordinary negligence.

[00:15:15] Speaker 01:
These two orders were designated high negligence, but as I looked at Freeman, I'm saying to myself, well, I'm not sure that that's enough.

[00:15:25] Speaker 01:
But having said that, I think the reasonableness of what he did and the reasonableness of the circumstance.

[00:15:33] Speaker 00:
And I assume you're giving me the same answer as to Butler's individual liability to the extent that you're saying.

[00:15:40] Speaker 00:
I think you need a little bit more than aggravated conduct.

[00:15:45] Speaker 03:
Mr. Moore, you mentioned in your brief, and you also mentioned today, that REI was in charge of the horizontal drilling, and Mr. Butler asked them their view.

[00:15:59] Speaker 03:
Would Mr. Butler or Peabody have an indemnification claim against REI?

[00:16:05] Speaker 01:
No, no.

[00:16:07] Speaker 01:
I mean, REI.

[00:16:10] Speaker 01:
as an independent contract.

[00:16:13] Speaker 01:
Stands in the same said as people.

[00:16:18] Speaker 01:
They are an operate as an independent contract.

[00:16:22] Speaker 01:
And in this case, I was a special.

[00:16:26] Speaker 03:
And they were also action was brought again.

[00:16:28] Speaker 03:
Enforcement was brought against him, too.

[00:16:30] Speaker 01:
Yes.

[00:16:31] Speaker 03:
Um, and that's been resolved.

[00:16:34] Speaker 01:
They Mr Baron was the one who is familiar with the plant.

[00:16:38] Speaker 01:
Mr. Butler, because he's normally involved with other things, is not was not familiar with.

[00:16:45] Speaker 01:
Mr. Farron testified that he thought he was complying with the plan.

[00:16:49] Speaker 01:
Said it turned out it wasn't, but, and they changed the plan afterwards, so that, but anyway, but he wasn't charged.

[00:17:00] Speaker 01:
Mr. Farron was not charged individually, even though as a sole representative.

[00:17:06] Speaker 02:
by any legal definition of agent he was.

[00:17:16] Speaker 03:
Thank you, Mr. Moore.

[00:17:17] Speaker 03:
We'll give you a little bit of time.

[00:17:22] Speaker 03:
If you want it.

[00:17:28] Speaker 03:
Morning, Ms.

[00:17:29] Speaker 03:
Moss.

[00:17:34] Speaker 06:
Good morning.

[00:17:35] Speaker 06:
May it please the court?

[00:17:36] Speaker 06:
Suzanne Maltz for the Secretary of Labor.

[00:17:38] Speaker 06:
It's a little bit difficult to hear you.

[00:17:39] Speaker 06:
You might bring the microphone.

[00:17:40] Speaker 06:
Could you guys speak up?

[00:17:41] Speaker 06:
Yeah.

[00:17:42] Speaker 06:
Sure.

[00:17:42] Speaker 06:
Absolutely.

[00:17:42] Speaker 03:
How's this?

[00:17:43] Speaker 03:
Better.

[00:17:44] Speaker 03:
OK.

[00:17:44] Speaker 03:
You can also bring the side microphones in.

[00:17:46] Speaker 03:
There's a lot because our system is not terrific.

[00:17:49] Speaker 06:
Understood.

[00:17:50] Speaker 06:
OK.

[00:17:50] Speaker 06:
Please let me know if I quiet down.

[00:17:54] Speaker 06:
We've heard today that in Peabody Zoo, this was an unusual emergency situation.

[00:17:59] Speaker 06:
All the more reason to comply with the safety standards.

[00:18:06] Speaker 06:
The standards apply regardless of whether or not the situation's unusual, and they certainly apply in an emergency.

[00:18:14] Speaker 06:
I'll pick up where my colleague left off on the subject of the unwarrantables, unless the court prefers otherwise.

[00:18:20] Speaker 04:
I just have a question, whether it's the agency's view that ventilation work includes plugging a borehole.

[00:18:30] Speaker 04:
Is there a term of art meaning to what ventilation work includes?

[00:18:36] Speaker 06:
Well, the agencies do that it doesn't matter whether, in this case, it doesn't matter whether ventilation includes plugging the borehole because the standard doesn't allow ventilation work when methane is at 1.5% or more in the return stream of air.

[00:18:50] Speaker 06:
But insofar as Peabody argues that plugging the borehole constituted ventilation, the judge found as a matter of fact that it wasn't ventilation.

[00:18:58] Speaker 06:
And the agencies view that that finding is supported by substantial evidence.

[00:19:03] Speaker 06:
That's correct.

[00:19:03] Speaker 06:
I think typically ventilation adjustments involve directing airflow in the mine, constructing temporary barriers to move air.

[00:19:12] Speaker 06:
And obviously, you know, I think Peabody's focused on its attempts to eliminate the methane.

[00:19:20] Speaker 06:
And, you know, I think that encapsulates Peabody's wrongful approach here.

[00:19:25] Speaker 06:
Addressing the methane should not have been Peabody's goal.

[00:19:29] Speaker 06:
Peabody's goal should have been compliance with the standard and protecting it.

[00:19:33] Speaker 04:
But you do think that's a question of fact, whether plugging the bullet hole is ventilation work?

[00:19:40] Speaker 04:
Yes.

[00:19:40] Speaker 04:
It's not a legal determination?

[00:19:43] Speaker 04:
I think that it's a question of fact and that the judge.

[00:19:45] Speaker 04:
And it's supported by substantial evidence.

[00:19:49] Speaker 06:
Yes.

[00:19:50] Speaker 06:
On the subject of the un-mortals,

[00:19:55] Speaker 06:
does it out of order here?

[00:19:59] Speaker 00:
Um, do we look, do we look, I'm going to ask you the same question.

[00:20:05] Speaker 00:
Do we look to the reasonableness of the interpretation or the reasonableness of the safety judgment or both?

[00:20:14] Speaker 06:
I, I apologize by misunderstanding the question in order to determine whether or not there's an appropriate good faith.

[00:20:25] Speaker 06:
Um,

[00:20:26] Speaker 06:
defense to an unwarrantable finding.

[00:20:30] Speaker 06:
It's the behavior of the operator.

[00:20:36] Speaker 06:
Whether or not that behavior was reasonable.

[00:20:39] Speaker 06:
I apologize if I'm not addressing the distinction, but here I think what the judge and the commission reviewed was reasonableness of Mr. Butler's reported reliance on Mr. Farron, the reasonableness of his

[00:20:56] Speaker 06:
decision to allow drilling to continue in high math and both the commission and the judge found that no prison operator.

[00:21:03] Speaker 00:
Suppose we thought hypothetically that it was a very hard question whether you could run the electricity in these circumstances under the reg if you were doing ventilation and you know the

[00:21:23] Speaker 00:
greatest legal minds would say, gosh, this is really hard.

[00:21:25] Speaker 00:
5149 question.

[00:21:28] Speaker 00:
And butlers there in the middle of the night having to make the call.

[00:21:35] Speaker 00:
Well, that was sort of like a qualified immunity concept.

[00:21:39] Speaker 00:
Is that, um, is that what we look to?

[00:21:44] Speaker 06:
I'm forced to first say that, of course, that would never be the case because the standard is very clear.

[00:21:48] Speaker 06:
But, um, conceding that in this hypothetical situation, it's a very, very close question.

[00:21:53] Speaker 06:
I think that the reasonableness of it, the standard is a reasonably prudent operator under those circumstances.

[00:22:00] Speaker 06:
And so reasonably prudent operator under those particular circumstances.

[00:22:05] Speaker 06:
So one could take into account the difficulty of making that call, I suppose.

[00:22:09] Speaker 06:
But again, that's not the case here.

[00:22:12] Speaker 06:
You know, I'm happy to answer other questions on the unwarrantable findings.

[00:22:19] Speaker 00:
But I think I've made the point that the reason I'm asking, we can make our own judgment about the reasonableness of your friend's interpretive position.

[00:22:35] Speaker 00:
I mean, we do that under our Kaiser.

[00:22:40] Speaker 00:
We make judgments like that all the time.

[00:22:42] Speaker 00:
But if we're talking about the reasonableness of the safety issues, what could a reasonable operator thought that under those unusual emergency circumstances, the best strategy is to try to plug the hole.

[00:22:59] Speaker 00:
Just feel much less comfortable.

[00:23:02] Speaker 00:
my ability to make that judgment.

[00:23:04] Speaker 06:
I understand.

[00:23:05] Speaker 06:
And I think that the factual underpinnings that the judge relied on in determining that Mr. Butler was not behaving reasonably and that Peabody wasn't reasonable in attempting to plug the borehole rather than evacuating miners and disconnecting de-energizing equipment and disconnecting it at the source.

[00:23:27] Speaker 06:
Those facts sort of compel the conclusion that it's not

[00:23:32] Speaker 06:
reasonable and furthermore, they're supported by substantial evidence.

[00:23:34] Speaker 06:
All that's to say, Judge, the Commission and the Judge have reviewed this and it is their, you know, it's their position here that that was unreasonable.

[00:23:44] Speaker 00:
I hope that that's how... They found... I should have this at my fingertips and I don't.

[00:23:51] Speaker 00:
I'm sorry.

[00:23:52] Speaker 00:
But Commission found that this was less safe.

[00:23:58] Speaker 00:
Trying to plug the hole was less safe than evacuating.

[00:24:01] Speaker 00:
Did they find that safety judgment was unreasonable?

[00:24:07] Speaker 06:
Yes.

[00:24:08] Speaker 06:
Yes.

[00:24:09] Speaker 06:
And just to draw attention to that fact, it was less safe than compliance with the standard because it created the hazard.

[00:24:16] Speaker 06:
Running the drill introduced the ignition source into the high methane input.

[00:24:19] Speaker 06:
And so in Peabody's reported effort to stem the flow of the methane, Peabody continued to create more hazard by introducing the energy into the high methane.

[00:24:31] Speaker 03:
atmosphere.

[00:24:33] Speaker 03:
I have a question about whether there's daylight between the Secretary's view and the Commission's view of C-23.

[00:24:45] Speaker 03:
You've clearly argued in your brief and you argued to us today that C-2, Romanet-3 prohibits all work other than the de-energy

[00:24:54] Speaker 03:
de-energization and evacuation mentioned in C21 and two.

[00:24:59] Speaker 03:
The commission said, you know, sort of whether or not Romanet 3 prohibits, for example, adjustments to ventilation.

[00:25:10] Speaker 03:
It plainly doesn't allow energized work.

[00:25:15] Speaker 03:
Do you think that was incorrect or incomplete?

[00:25:19] Speaker 03:
Or is there any error in the commission's

[00:25:23] Speaker 06:
No, I wouldn't characterize it as incorrect.

[00:25:25] Speaker 06:
I think the commission just declined to sort of reach the interpretive question that the secretary is advancing, which is that the standard only allows the work detailed in subsections, little Roman numeral one and little Roman numeral two, excuse me.

[00:25:39] Speaker 06:
But I don't think that it was legal error.

[00:25:42] Speaker 06:
It just is that the commission did not reach the full interpretive or decline to reach the interpretive.

[00:25:49] Speaker 03:
And for our part, do we need to go beyond what the commission did?

[00:25:55] Speaker 03:
We would ask that you do, yes.

[00:25:59] Speaker 03:
Even though it's not necessary to resolve this case.

[00:26:02] Speaker 03:
And how about do we need to resolve whether this is maybe the same thing put differently, but whether the regulation permits ventilation adjustments when methane levels exceed 1.5?

[00:26:19] Speaker 03:
Percentage return is actually a different question like the question about whether the standards cumulate or whether the one point five standard kicks in and displaces.

[00:26:32] Speaker 06:
Well, I think that that.

[00:26:34] Speaker 06:
In order to find that 1.5, that the no other work referred to in C2-3 refers only to work, or I'm sorry, refers to work other than evacuation and de-energization and dismantling, it would involve finding that under C2, or I'm sorry, under C1 at 1%, the requirement

[00:26:57] Speaker 06:
not the option, but the requirement that operators engage in ventilation control when methane is at 1% or between 1% and 1.5%, I should say.

[00:27:06] Speaker 06:
I'm sorry, I've sort of rambled.

[00:27:08] Speaker 06:
But in order to find that C2-3's other work prohibition includes ventilation control, you would be required

[00:27:21] Speaker 03:
that.

[00:27:21] Speaker 03:
Right.

[00:27:22] Speaker 03:
But if going the other way, if Butler and Peabody were to prevail, one would have to accept the more limited view that the commission took, and then also accept that the ability to adjust ventilation carried through when the methane levels exceeded 1.5.

[00:27:43] Speaker 06:
If Peabody were to prevail on its theory that this was ventilation.

[00:27:48] Speaker 03:
Right.

[00:27:48] Speaker 03:
And one would have to find that plugging.

[00:27:51] Speaker 03:
The hole was ventilation.

[00:27:52] Speaker 03:
So all those three things.

[00:27:53] Speaker 06:
Yes.

[00:27:54] Speaker 04:
And none of them are.

[00:27:58] Speaker 04:
So the ALJ stated in its opinion that plugging the borehole was not ventilation work.

[00:28:06] Speaker 04:
But the commission doesn't make any finding of that sort in its decision, as far as I recall.

[00:28:14] Speaker 04:
So how do we, as a court, think about that question?

[00:28:19] Speaker 04:
And can we review the ALJ's finding?

[00:28:22] Speaker 04:
Does the commission decision, is it viewed as implicitly endorsing any finding that it doesn't explicitly disclaim?

[00:28:30] Speaker 06:
I think that this court's approach to reviewing the ALJ's, in my view, factual finding that plugging the borehole was not ventilation control is the same process that the commission would have gone through, which is just reviewing it for substantial.

[00:28:44] Speaker 06:
I'm sorry, I can't hear you.

[00:28:45] Speaker 06:
But we don't review the ALJ's decision.

[00:28:47] Speaker 06:
We review the commission's decision.

[00:28:48] Speaker 06:
Yes, but the factual findings that the ALJ made are reviewed by the commission for substantial evidence and by the court then for substantial evidence.

[00:28:56] Speaker 04:
Even if they don't explicitly review them?

[00:28:58] Speaker 06:
Yes.

[00:29:00] Speaker 06:
That's my understanding.

[00:29:01] Speaker 04:
Is there a case you have that discusses a review in this circumstance?

[00:29:07] Speaker 06:
I apologize, not at my fingertips now.

[00:29:10] Speaker 03:
So your view is the ALJ is the fact finder to the extent that the commission doesn't displace the facts that the ALJ found, those are the facts that are implicitly incorporated in the commission's determination?

[00:29:22] Speaker 03:
Yes.

[00:29:27] Speaker 06:
I can just briefly conclude.

[00:29:29] Speaker 06:
I would be remiss if I didn't emphasize what a outrageous, dangerous situation this was.

[00:29:37] Speaker 06:
I'll just say that Peabody has suggested that the Secretary has been hyperbolic in emphasizing the potential deaths of six minors, and it's not hyperbole to say that this circumstance could have resulted in at least six deaths.

[00:29:53] Speaker 06:
So I just would like to emphasize that.

[00:29:57] Speaker 04:
Thank you.

[00:30:02] Speaker 03:
Mr. Moore, if you'd like it, we'll give you a minute for rebuttal.

[00:30:09] Speaker 01:
I wanted to address briefly the whole issue of whether it's ventilation work.

[00:30:14] Speaker 01:
If you had a seal along a return airway and it was breached because of roof pressures or something like that and was sending methane into the return, the repair of that seal

[00:30:32] Speaker 01:
which saw methane from coming in.

[00:30:34] Speaker 01:
It would be, without a doubt, ventilation work.

[00:30:37] Speaker 01:
So in my view, it really isn't any different than plugging a hole.

[00:30:42] Speaker 01:
The other comment I had is there are six factors that the Commission looks at for unwarrantable.

[00:30:51] Speaker 01:
They don't ever say reasonableness one way or the other, just that they look to extent, duration, degree of danger, obviousness, knowledge of the condition and abatement,

[00:31:01] Speaker 02:
And on some of these, as we've set out in our brief, I may say, as it wasn't supported, but how they were described.

[00:31:13] Speaker 02:
So no other questions.

[00:31:14] Speaker 02:
Thank you very much.

[00:31:16] Speaker 03:
Thank you both for your able arguments.

[00:31:18] Speaker 03:
The case is submitted.