related to the alternate escape way that terminates at the four east van for each working section that stuff go under seventy five three eighty thirty c f r seventy five three is required to have to escape was once an intake escape why that is not an issue here and once an alternate which can have intake air or return air we are going to be talking about the alternate one since then it comes out into a canyon i know i'm talking to at least two judges who are from utah so you know and understand canyon comes out in your canyon in your flat area that about fifty by two hundred feet there are several buildings out there there's a fan there is a generator case fan is powered by mind power to the mind for summary and that is cut off they have a generator out there there's also a small building for spare parts council can i just ask a question it's prompted in part by the supplemental authority we received in the last couple days but i was going to have this anyway and it has to do with the twenty four hour safety regulations and the citation on that and i need some help in understanding why that citation and that issue is kind of proceeding on a separate track because it seems like the two issues are related in other words if you end up being cited and told that the forest fan portal escape way won't it's not up to snuff in terms of the twenty four at the twenty four hour ambulance regulation why wouldn't that have have an impact on this issue and then really vice versa it just seems to me that they're related and they're being handled on the se parate tracks and where does that where does that leave us can we really proceed that way they are related and then that's what drove the issuance taishan on the s k why  happened i think here is we have wast side of the fact that the skateboarding standard is for getting people out of the mine well let's assume i don't i know there's a dispute between the pardons as to the reach of the regulation that is is limited to getting miners out of the mine and that's that's the end of it or does it also include taking them to some place to get whatever medical attention or other attention they need let's let's assume for the sake of discussion that it's the latter and if it is then portal ends up being adequate for that second part under the twenty four hour ambulance regulation then doesn't it render or not to obtain a petition for modification on the twenty four hour emergency transportation that would probably preclude them from using the forest fan portal as an escape  that still leaves the question as does that standard does the escape weigh standard prohibit use as a for a stamp or and you know i understand that the secretary wants to say scapegrace standards you do get double duty but we've lost sight of the fact that it's not that's not the way it's written that's not the way when they did the standard back in one thousand ninety six that they contemplated it and so we're we're forgetting that what we want to do is get people out of the muck and we'll have to deal with obviously with a twenty four hour emergency medical transportation within so is it your position that the secretary's interpretation of the regulation the language the nearest line opening suitable for safety's occupation of minors is is contrary to the language of the statute  that has been interpreted that suitable for states evacuation of minors means that not just where they pop out of the ground but what happens once they pop  and so i'm trying to figure out just isn't that i mean shouldn't we defer to the secretary's interpretation of that reg now ok so why not i have a list of reasons why not ok first of all you should far there's been consistent interpretation and i'm not are you relying on the fact they haven't been cited they haven't been cited but recognise that that's not just how you are they were there once or twice they are there every quarter but isn't the law pretty clear that the inspector can't find the secretary and mean well give me another reason why we should i will but let me finish on that if i may be wrong because this isn't just the inspector this is  makes clear that what they were talking about is when they were talking about safer evacuation was getting out of them are not getting off my property and the like bed that is secretary's interpretation is both come out in much more precipitous canyons and they don't bring they never brought these papers out there as you pointed out we're interpreting language here and that's why i'm asking about the limits mine site so your position is that it is not appropriate for the secretary to consider whether when they came out there was no way to get them to the hospital let's say you can't fly inappropriate for the secretary to consider what happens once they come up out of the into the and be an atmosphere is i think under this standard yes and you also have to consider which the secretary apparently didn't consider and which to commissioners who voted to reverse that you've got about your know that this is a shorter way out it means it's well that's likely people will be injured and you've got to balance that against the longer risk a point and there apparently was no balancing within the department of labor did it sounds like you're moving now over into the substantial evidence for the citation that that where you're went in and and and and actually travelled the west lease routes and there was evidence that more of that route was drivable and so there was evidence about the two  jaeger went and to simply gather evidence to use that hearing to refute the operator's argument not to well i mean that she went in right before the hearing and so that wasn't would take walking their face without tearing somebody in a stretch for me the question is in looking at the substantial evidence is it appropriate to consider only what happens inside the mind or to also consider at what happens inside the mind and what happens once you come up out of the ground i think under this standard what you consider is whether you can get the people out of the mine to an area that is safe on the surface and that this area where the fan was was safe so your position is that an opening that would be unsuitable would be one where people can't safely stan evacuated but you're going to die anyway well i wouldn't say that if you can't get to a hospital well if you came out if you came out and you're not going to survive why all the extra couple  hours it takes you to get out on ensures route is going to have the same effect so you see that's the problem we have here is we're trying to take this standard and fit it into a different box the box is that insurance and it was let's get the people out of the mine thank you counsel thank to have medical personnel there and if they need to be transported to hospital then the twenty four hour hand to a service address is that and so if you read the two regulations together why isn't this one a four ambulance than the interpretation of your a fair regulation because that takes into account not just whether you can get to a hospital but whether you can for example get away from any flames so if we talk to gas and things that might be a thing from the mine after an explosion and twenty four hour emergency medical transportation standard wouldn't wouldn't cover those kinds of hazards i wanted to address then briefly manner any time before this case i'm not aware that it is happening any time before this case and i we we do acknowledge certainly that this is and i hope unusual an anomalous circumstance where getting interpret the regulation to encompass situations that it might not necessarily have might not my only question i suppose there's a first time for everything but is this the first time as far as i know yes it is ok i want to turn then if quickly to the surface in the invent of an emergency that sounds pretty much like a focus on fastest way to the surface doesn't it in the statute i think that is a roots underground and that there was too much focus really on what happens once they reach the surface in the state to that i can i have to general point one is i think that was a misapplication of the substantial evidence standard so desperately bad for the author of the paper route to feed us long when the primary if we were out with that one but the comparison isn't to the primary route it's between the two being considered for the alternate route correct and that is true but length is only i understand that we have some evidence on the matters you just address but was there any evidence presented in the example of the types of emergencies that can happen whether it's gas explosion cave ins whatever whatever it happens to be that the four east fan portal escape way would likely result in more deaths and injuries than the west least chordal escape way i mean  about driving and this and that in the other but are we going to lose more people in one than the other and i didn't see that kind of expert analysis in the record before the  reasonably to have concluded that well isn't that what matters i mean isn't that that what isn't that what this is all about is to get as many minors out of there in the event of an emergency as you possibly can the l j this is just a matter of saying well we've got one's longer than the other in this got we can drive this we can deal with various things but did anybody come  in and sort of map out what might happen under different emergency scenarios is that why we have the escape boys in the first place i do agree that that is why it's the way to do this and that the most important thing is certainly getting m know their family so you think that i am in my miners would like to know that i perhaps they would if if the court believe that that's necessary to resolve the case and i think the appropriate remedy would be to every man for additional fact finding on that point then an option for this court three man for more facts i think that we ail just that would require concluding that there was a substantial i understand but that sort of like what happened in the in the twenty four hour ambulance case right there wasn't wasn't that sent back for more facts on the right and this this isn't secretary nike's or any way to consolidate all of this i guess i'm still having a problem with with with these cases going on separate tracks and we have overlap with these issues and it seems like th i think there is sufficient evidence to answer that question in the affirmative and to the extent that that other citation is relevant or is kind of involved i don't think it's relevant to or delete necessary to decide that issue  i do think judge mathis and there was some testimony about the nature of injuries and in a mining disaster and why it matters not just out of the mine but also to get treatment because occur there such minor injuries occur likely at the moment of the explosion of the inundation whatever the mine emergency is the injury is likely to occur at that point and yes it might take longer to get out of the underground portion of but at least we know approximately how long it would take the for example to portal with no idea how long it would take because we have no idea what the weather might be like there's no there's no way to know whether an emergency might occur in the snow or the wind or the rain or at night each of those things would preclude appreciate the argument counsel this morning case will be submitted counselor excuse