doing something is not the same as actually doing it and the commission's using the kind of magical words of the previous review doesn't it actually apply that standard correctly it said with the commission did was commission reviews what the secretary did under overturn capricious review and then like which is what both parties are semi then my question is what is the standard by which we review the commission's determination that the secretary acted arbitrarily arbitrary and capricious lee and it looks like in the respondents brief they indicate that the question for us is whether the finding sense i'm not sure it may make sense but i'm not sure i follow it and i guess my question is for our purposes when we're reviewing what the commission did are we asking was the commission right  think that the secretary acted arbitrary previously or are we asking was there substantial evidence supporting the commission's determination that the secretary acted and are going to trip arbitrary and capricious manner and i guess what that gets to is the determination that the secretary acted in an arbitrary and capricious manner is that a question of law that we reviewed in nova or is that a finding of fact that we review for substantial evidence what's your view on that i that the secretary did not act arbitrarily was supported by substantial and i think that the same breakdown so i hear this is less than a question and more an observation but the system i'm baffled by it just like our chief judges statute says that the commission has to review the l j by a substantial evidence test and then the judicial review provision of the statute says that we review we review the commission by a substantial evidence to say you wind up with a system that says that the that the l j determines whether the secretary has substantial evidence to support and the commission has to accredit the l j by substantial evidence and we have to credit the commission by substantial as it's totally absolutely bizarre that's not a question of of concerns it seems there's something a little bit odd about saying that we review a determination as to whether the commission the secretary acted in an arbitrary manner for substantial evidence because it indicates that that's a question of fact and i just whether some whether that sector acted in an arbitrary and capricious manner feels to me like kind of like a mix question of one fact that that's ultimately a legal conclusion that the secretary acted in an arbitrary and capricious manner it seems like that's a legal conclusion that's grounded in facts 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 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 but you seem to be buying into that i think that that makes it harder for you i think right because i mean it would be easier for you if we review that to know i'm not necessarily saying that's right or wrong i'm just saying i'm somewhat puzzled by the questions on this because i don't i just step into the shoes of the commission and say well we'll look at what the secretary did and we'll decide to know whether the secretary acted an arbitrary and capricious man and whether the commission was right to conclude that the secretary did or we could do something more deferential towards the commission and we could say well actually yes i think that at least it is in in some respects a mix question of law and facts but you know at least and in resolving this case you know i think whatever standard the court applies is one of the things that is most likely to release nothing which of course is one of the sources of catastrophic fatal mine explosion so you have kind of a it's a combination of factors that mean these exceptionally dangerous and that's one of the concerns that have to have not there is not arbitrary was in fact eminently reasonable for insurance to say to my house well you know you need to tell us how you're going to ventilate these deep cuts or anything from the operator that was going to address those deficiencies the same reason that engine was concerned about this plane and was was again via the inadequate weekly examinations so a my examiner has to call on the leaders essentially examiners to go through these worked out areas at least a week and determine methane and determine whether the ventilation plan is in fact work like this supposed to  s the way i view this case and that is it has very special circumstances in that this perimeter cut scheme had been approved repeatedly past approvals and at least until you point me to what circumstances have changed there are no changed circumstances and it was arbitrary  show and the secretary to say no based on the vent study alone i'm not looking at the other bases for their commission but based on the they are inconsistent her vision or what prompted him to go look at this plan again was you know another mine in the same area i get way north wanted something very similar to what this man was doing so insha before it approved forty very similar plan was not functioning adequately was not suitable that prompted and said to go look at this mine and and i don't think that was arbitrary because there are so many similarities between the plans and and the minds here surely i don't think that i don't think that come nd was it gateways of roof collapse caused by the bolt i apologise and not following the question all right  what happened in gateway that made them look at her equal oh so gateway have been using a shorter perimeter they wanted to begin using forty five perimeter cuts like the cuts that were already information was from a plan that was completely the similar to this mine had nothing whatsoever to do with the mining conditions or organization system that was in use at this mine that would be one thing but here again i'm sure got information about in mind that was using  has to be approved in the future and holding it's arbitrary for him 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 him should to response new information about press minors  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 workout area miners do not enter it after it is mine and the typical way you evaluate a mined out area he see why there is going and then why there is coming out and that was as mr haas and stob described to the judge that is exactly what was being done i thought i thought am i wrong i thought what parameter mining that with worked out areas they're still exposure in a way that there is not with non perimeter mining now i don't believe that's the case judy yes you can go in because the roof is supported in many of the areas although not in the program or cuts themselves by you don't normally go in because you minded out you are looking to see if that area is ventilated by checking what goes into the area and what comes out of the area and that's what they were doing now one of the things about that study that they did and we have to recognize that all three of the mines that they study that were the only mines doing permanent mining at that point although gateway north had a premier sesar mining gateway that did perimeter m however when you look at that study there are a couple things that really strike you which should have struck the district manager st of all the methane levels even in the x the some of the perimeter cuts were minimal a th of a percent of methane or less valves are very good numbers the other thing that was striking was the oxygen numbers if you when you  expose call to a air it begins to oxidize what happens is it uses up oxygen if you are not getting an error exchange as mr hart's og our expert described across that workout area you would be seeing lower levels of oxygen you were not what hasn't been mentioned here of course is that we're talking about what the district manager considered so far while what he didn't consider was the safety benefits of perimeter mining parameter mining as distinct safety been ants fits that nobody disputes here and he did not consider them and the judge made a credibility finder when he said oh yeah i thought about them while he didn't even mention them in any of his letters to the safety benefits are significant they are worth obviously worth considering we cited the canyon fuel case where involving an escape way and suitability of terminations where the judge hadn't considered that safety benefit  opinion but here the secretary didn't it wasn't a formal adjudication is it is the rationale the secretary's entire rationale consists of the letters is that it the letter and the technical citation that was issued to give the commission jurisdiction that's it that's  it it's wow 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  no i don't read it that way i think i would like to read it that way and and in a sense but now i'm reading it is they thought ours was bad and shouldn't be used at all and i don't think s it is a very safe method of doing it but the agency of the agency can change its mind can it while the agency can change its mind but it has to be reasonable when it does that and they're one of the things they didn't do err is look at the safety aspects and balance that out this court over the years and i know judge henderson has been involved in some has dealt with petitions for modifications of mandatory standards and one of the aspects of those that you look at is whether or not there are safety advantages irrespective of what the standard provide and in this particular case there are distinct safety moment and the like there are significant safety aspects that the district banter just simply ignored excuse me  we look at some other things here you know it's not only failure to look at the safety aspects one of the things he didn't do is talk to his own inspectors this district manager did not have any experience with perimeter mining he said he'd been and nighthawk but he never looked at perimeter mining he's got a number of inspectors who inspect this mine regularly ventilation specialists in the lot and he never sat them down so what do you think of this his apparently he didn't talk to them but given how he reacted when he disagreed with one of his subordinates who was doing tasks i'm not surprised that he didn't talk to them and even talk to those people who we have evidence supported perimeter mining  we also this is what normally when you have a workout area the roof is bad the atmosphere is bad and you can't go in there and do the sort of thing they did here but they have techniques to evaluate airflow across a workout area using tracer gas mr biter and i discussed using measuring the pressure drop across the workout area they didn't use that would have been really simple to use that well not simple because you have to set up tracer gas buddy but they didn't do that  d 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 a is wheel device that we want out into the end of the perimeter cut with i think they said to cap lamps on it and i'm sending puffing smoke out there and trying to figure out what it's doing and what it did was dissipate which would  suggest to me there was some air movement they also took a bottle samples from that area which showed the methane was in the oxygen was good but if you look at the smoke to wrenches determination i can't remember exactly made it but that the nearby mine couldn't engage in the level of deep cuts that it engaged in suitable that appropriately for purposes of ventilation was also arbitrary and capricious or do you think the difference between the circumstances and vald with that mine and yours there are enough of the circumstances on the record your hon say but my gut my gut feeling is all three studies gateway viper and nighthawk are all similarly flawed because of the way they did the studies one of the things i want to point out is we're talking about forty foot perimeter cuts typical minor cut is twenty feet i am i hop would've had as undoubtedly gateway and viper would have had the ability to take forty foot cuts that were not perimeter cuts and when your value weight parameter for forty foot caught you evaluate the ventilation at the end because what you're doing is taking a continuous miner and mining for forty feet well it's a dead end no matter what until you make air connections but because it's a dead end when you are proving that you actually do have ventilation studies if it's  properly at the end you can see in the history of the ventilation plans here that the district views getting a forty foot cut non pregnant or as a step by step process that was true in the prairie state case that was before this court also are aware that you have to go and prove that you can mine twenty feet thirty feet in forty feet there was a comment also that you could have a roof fall which would obviously there are two types of liberation one is you know  you don't have the right time type of rock they're not voted 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 but you don't have the potential here that the secretary and the district manager did a parade of horribles that simply didn't apply to this area  one of the things that theoretically mine plans were supposed to be mine specific and in this case the mine specific nature very low methane there are other factors that are you can look at here and that one of the things is these panels of rooms that where they were doing primitive mining have about a mess eleven month life because what they do is they my number ohm's and mine up six hundred 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 ok you care about that inspectors while the inspect the inspectors don't go in there either judge once you've minded 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 is and you could have a methane ignition that would propagate out of this area where you simply don't have either the ignition source because you have no electricity left and there and you don't have the ignition sources from any other source but  you can theoretically have an explosion that propagates out of a workout area but it in this circumstance the methane isn't there all of the the instances in wh miners have been injured by methane explosions were ones were they all ones in which the miners were in the area yeah i'm running through face but there are varying circumstances over the years but you can see there in the area well let me ask you if i could mr moore you said the inspectors don't go in of course after it's sealed but does the record show the length of time between when the perimeter cuts are finished and when that works our area is sealed where the when the inspectors would go in and what may sort of answer in two parts once it's seal they don't go and it was about an eleven month period from the time they started one of these groups of rooms to the period when they would be sealed the inspectors even before it seal when there is active mining because they mine a group of rooms to each side and continue in that way they don't go into the area that's been worked out and already mine they visit the active mining area and they were inspecting the bleeder entries around this workout area they would not go into the workout area in fact there is some testimony that this was barricaded off so that they couldn't get into the work area and there's nothing going on there so there really isn't any reason for them to go thank you know frankly where the miners are working ok but we don't know how long a period of time between the between the pick up on what doesn't understand anderson asked me if there is a difference between parameter mining and non pregnant or mining and that there's a period during which with parameter mining worked out areas remain accessible and not sealed right to get sealed but they if we were not to perimeter mine around each one of these rooms it would still be a workout area 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 you would not go into the workout area even if there were no perimeter mining there is no reason to go into that area where there is no mining and  ok my colleagues i have further questions for you mr moore so i do have one sir does it does it mean that the worked out area it's not possible to have a methane leak that either originates there or flows through i won't say it's not possible but it is not likely the active mining which is where if you were going to have methane were rated in any way is further ran by further away from this work out area and you are you are checking the air coming out of the working where they're actually mining coal on a regular basis and they're a fairly low women's so it is unlikely you would be getting methane there into this area o you the but the gist of finish of this thought but the secretary found that with the worked out areas and perimeter mining there is the possibility of methane in those areas right and i think you just think that was wrong already are well when you use the word possibility your honor you know probably anything is possible but it is not likely and that's what the testimony was and actually what the district manager questions thank you mr moore misc ott will give you the two minutes you asked for for a bottle thank you your honor just a few points to make jentsch ran off you asked one question about what the record on her view is here given how the technical citation process works you know i think i have to have both ways and it gets to testify at the hearing secretary only gets to rest on you know the letters that it sends so give it process works given that there was a commission hearing secretary make findings they consider the relevant factors did the secretary provide an explanation and as long as that wasn't so inherently on reasons that it can't possibly be the product of agency expertise then it really should be a you counsel thank you to both counsel will take this case under su