commission itself did not articulate one rationale that would be amenable to judicial review and the judge's decision is is flawed first because the judge did consider redundant safety measures which the commission in this court whether other safety measures are we said we said you can't consider the surrounding circumstances in the causation determination under the sad truth that we explicitly noted without any with with disapproval that the agency did consider surrounding circumstances on the separate statutory element of whether or not there was a hazard somewhat confusing our cases go off the statute which as i read you need a violation you need a hazard and you need a causal connection and we say you can't consider all of the surrounding stuff on the causation question we explicitly leave open the hazard question and then there's a separate line of administrative precedence right your or the commissions for factor test where if you look at that a lot of people consider this stuff a factor three month fourth circuit and now the commission says well it's not a factor three question it's a factor to question and that goes all the way back to  mattie sit self i will i will certainly agree that the law isn't what exactly clear right area and it just seems it just seems very weird to me as a conceptual matter that you could never consider surrounding aggravating or mitigating circumstances no matter how much they change the calculus well i don't mean to dodge the question when i'm going to dodge the question a little bit because they think that it is clear well that case here involves step three which is a question of whether an injury was reasonably likely to occur if you think that especially after the four service is and looks great that it's clear that redundant safety measures at least those that three don't matter and but there are some cases where in in the course of the fourth circuit shifting some of a step three analysis into step two analysis of some court say well ok now we'll now we'll consider this of step two i mean i'm just trying to just trying to pin down whether you know if this goes back this back because no one can ever consider surrounding circumstances for any purpose at any time or whether it goes back and then there's a question of was a step to issue preserved is it could the commission reopen given the change in law in two versus hazards are irrelevant at all steps although i think at the very least three in four and certainly should be two as well if not all of them then i don't quite have to go there but if the court is more concerned about that you know that we w injury would occur i think it's one thing at least that is clear in this area or at least in the judge's decision is that she considered her decision is based on this completely on the existence of the safety measures that are required in addition to the control plan it's based on her finding that minors should be protected by other pieces of equipment that they would be forbidden from going under unsupported roof or or even near it in many cases and those are safety standards that in sharp requires in addition to the roof control and didn't support the finding in that case and so it to the extent that the court has done that in the past i think that that wasn't a secretary of the senate is in the secretary's position now but even if the court does consider it makes more sense to think of the question as a legal question particularly because the commission at ways has held that considering minor caution which is kind of conceptually parallel isn't it is that is an error of law and i don't think that it's difficult for me to your relevance and the judge's findings again are completely based on on those facts that are relevant and so i don't think i don't think that there is substantial evidence to support it and but i do we d concede that every man would be required for the judge to consider only the relevant evidence and it is possible that the judge will reach the same conclusion on remand only considering the evidence of the violation and the hasn't at the violation contributes well i also want to discuss briefly that there is no distinction between primary and secondary measures for the purposes of the s and s analysis as the commissioners who are aren't and it doesn't make sense in terms of birds and certainly for close by president as well in cumberland this court rejected an operator's challenge that measures that sought to prevent a hazard from occurring and measures that sought to prevent injuries from occurring if the hazard did occur were relevant the court said no and rejected both of those and so i think that should be dispositive of any distinction between primary and secondary measures and just briefly the judge also erred by assuming that minors would exercise caution which the commission has repeatedly held is also not relevant because the hazard that the violation contributes to exists regardless of whether minors act i mean it's true  in support of her determination that this violation would not result or be likely to cause significant substantial injury which is what my family said but embedded in that analysis was the proposition that she could consider other safety measures she won it once one safety measure she figured on your honor was this that and i think it goes to the whole sram you think what happened in this case was you had an extended cut india that they said put more stress on the roof and the inspector test that he was concerned that the roof the roof fall if it failed which in this case it did and this did not occur but if it did i might extend out into the bowl today areas where miners might be at trial we introduced evidence to show the judge that there would be no minors within a reasonable area that if it did extend out minors would be present there we should introduce proof to the to the ale that the monitor operator for example has a remote control device he stands backwards of the boom of the minor and he's therefore fifty feet away from where the cut is being taken we also showed the ensure brought up well you also have to take gas gas chits we said well miners only progress to the second row boat they have a twenty foot probe that they stick an extend out t measure they have they have to go under the affected area to bolt it as well stan well and but again and yours and your response to that is when they do that they have this what is it the lazy artists well first of all you are off and proper now i  would think that that that might or might not be a a really good argument in your favor depending on how well an a t r s work so expects sat there seems to be this case law that you just have to ignore the eighty the a t r rats well i don't so i don't think i do because i think what the case law says is when you look at the nature of the violation you can't consider redundant safety measures and the case is all for example in the b case what book creek was about was the the it was an accumulation violation and there was a question as to a fire if a fire occurred where the operator said let's let's just let's just tie this one down ok with it this you have to cut the violation is the cut the cut the validation and and people have to go under that area to fix the the top of the mind but but charge that happens every second every m that states when you take a cut you're just i understand when you do understand you have to then go in and vote that pot and miners do that every day and that might be a larger or a smaller safety problem depending on how well the other protections work was not a safety problem at all your arm because it's part of the normal mining process when you make a cut you have an area of roof that you've exposed that's not yet bolted so then miners no matter how safe the a t r ass and no matter how sensible it would be for someone to consider that we have cases that same only look at the violation on the violation because in going back for example the buck case what the operator said in that case was this is not significant substantial violation because if a fire occurs then we've got extra water water facilities right we've got  fire retardant fail so that the far will not but the fact of the nature of the violation the fire itself is dangerous so so therefore you don't get to consider that when you determine whether or not this is a violation or not but  i agree with you that a lot of the cases seem very different on the facts right to say there's going to be a fire in an explosion but don't worry about it because we have a fire extinguisher seems really different from this case  but the problem is that the language in our decisions just seems proper well but again i go back your honor to the situation that in this case the judge made one comment in a report that said well you know the miners not going to be exposed because he's away the guys do the gas check for me explain all these people are not going to be exposed but and also by the way when the when the miners go into to correct and both the top they got the benefit of the eight your system that's the one comment she made she never made any other comments that basically say ed i'm this is the main thing that iraq relying on you know i try a lot of the intraday says and a lot of times you know where the footprints in that area which means to me that people i've gone into that area if he had it's a part of the judge's fact finding determination and under and ultimate decision making that she takes all of that i consider ration looks at all the facts and then determines is it reasonably likely that a significant injury will her as a result of the conditions cited in the volley and in this case she did exactly what everyone wants to do she did that she set up at least thirteen different factors that supported her determination that this violation was unlikely to lead to a significant injury to the minors in this am not see him thirteen eleven or i am i not looking on the right page i didn't count them all your honor i know that in the commission decision the affirming commissioners made a point and actually set that out  the fact that the the roof actually did fall and that you know it didn't it didn't extend outside the boat pattern there was a tire bowing pattern also that the the area was bolted immediately thereafter therefore i guess cutting down the time upon which miners could be exposed to the hazard that was one consideration she made i'm sorry ron i didn't count when you read them all but i know they are in the in the field level and i think anything other than redundant safety measures i think there's watch more in the in the decision not in the record in the decision oh in the decision in the hay on genes oh yes she she cites to  all the side the with the reasons why and she mentioned the one being that when minors go into bowl they have the eight here asked to produce them but but she cites other analyses and reasons for her determination that the page forty two that full paragraph they are she discusses her determination as to why it's unlikely that it and it had that extends on to page forty three and then again you know she makes one comment  is if no one's in the area exposed to the hazard how can there be a reason movie likely that a substantial one why doesn't that rely on minor caution well again there's a there is many cases on the other side where ignition source well you could say well she was improperly consider that because she considered that martyrs would accept that and want to win like a cigarette while he was underground so i mean again it's just pick and choose she performed an analysis based upon the facts the gap presented to her and decided a case look at all the evidence they got present if this is a this like the affirming commissioner said this is a substantial evidence case looking at the  stone the tire both in pattern and the existence of resin balls every single one of those things is either acquired by inches and ends or acquired by the mines or control plan or assumes that mark is righteous life caution and legally resolving this case doesn't require the court to do second you take a second step down i don't think there would be any more evidence that would just be the judge considering the evidence that is relevant to the the violation and without that they are quite at what other avenues needs to be considered i think that evidence that could be conserving evidence that needs to be considered is there was a deep cut it can be and the judge found it contributed to the housing a roof fall of the judge just needs to determine now without assuming that minors are protected by other pieces of equipment without assuming they won't go under or near on supported roof was there still a reasonable likelihood that any of the miners working in the area would be injured by rafal but i'm just trying to figure out who the decision may have been front of us on the record so in your view it's still open whether or not this was operators are free to argue it and i have look forward to arguing right back at them ok thank you council faces a mi