first assistant secretary decision in rose biden and then litigated on a very limited issues of whether or not certain conditions would be imposed and they granted the  they involve the issue of electronic surveying instruments which are not anything exotic schools are all clear and electronic surveying instrument is an instrument that you see out on the roads ide in construction sites it is beginning common in the mining industry and in general in history since approximately one thousand nine hundred five it is the standard of the industry and it is ten something of that saved nature that was approved and then and mr ryder our expert managed to dig one off didn't find see any significant differences except  more caulking around the outside but there is no approved permissable surveying equipment having said that they are in fact they are different than other m equipment permissibility applies to everything used in the three locations that we're talking about and that includes continuous miners roof older shuttle car and there's a significant difference because a few are using a continuous min unsupported roof the assistant secretary in this case rejected the findings of the judges it's not one but it's two judges and actually engage in fact finding credibility determinations on his own no under our president isn't this standard of review settled under your precedent in the standard of review is settled the question is whether or not he can engage in the sort of credibility findings that he did make a case in this circuit says he and however the if you look at the other cases that we've cited in our require the real question becomes how do you view that and we all know that the historical way you accept the finders of facts credibility determinations because they listened to the witnesses and they saw the and this pay particular case it's that's particularly him significant because we have two different judges who listen to essentially the same expert witnesses and made a decision and i would submit that the fact that he went contrary to the a l j findings would suggest that they are his findings should be viewed with some reservation if not skepticism that's an interesting stand your good you agree that the fact that there is evidence contrary to his finding does not mean there is not substantial evidence sorry for the double wall we w evidence he revived on is generalized evidence that does not mean to some tangible evidence cast when placed up against the syfy evidence for example let's take the issue of dust inside an electronic surveying instance he rejected both mr ryder's tass mr ryder's testimony on examining the insides of instruments that when they test for permissibility they layer coal dust on the electric boat components and see if it will work night mr home he did not testified as to the potential for layering record not on the inside of instruments you can get some dust into the instruments right but that doesn't mean it will but you are as we spoke and we frankly we mr h who the system secretary divide on who's obviously his subordinate didn't do any tests to see if these components would ignite the thing he rejected for example also the fact that there are thermal resistors in this and that means it shuts down in a certain temperature he said well they could malfunction well ok you can make that argument on example my cell phone in my pocket shuts down under certain temperature because it's too hot also shuts down one has to call while that's that's the same sort of technology that we're talking about here  it's how i dance when i'm trying to understand in your argument in part is given the mine act and congress is determination to place primary emphasis on the safety and health of the minor why is not the fact that as you admit dust could get into these instruments and that they are not shown to be failsafe or we can even ignore the failsafe was sufficient to support a finding here i mean you say they were generalized findings yes general was testimony or generalized is provide the major protection what you have done and he listed a whole bunch of redundant protections your requests for one redundant the have one protection with a number of others a whole laundry list of fully replaced by what was being proposed that's what he found but we don't believe that supported on this record we also think he ignoring for example the whole issue of ventilation and of course we have a ventilation requirement in here in this post check make sure the way she is up to what it's supposed to be on the section when i was  reference to all of the violations that had been issued hul are not maintaining the ventilation system properly there have been violations issued that does  not mean that the world work talking about it if you go on that premise your honor then you also need to look at the violations for permissable of equipment which is and i cannot quote you where they are the most frequently cited standards it's on their machines website but it's in the top ten and if you go with that there very well i don't think you can base your decision on the fact there may be volumes nor do i think you can base your decisions as he did on the fact that methane detectors may mouth function these are the  and are used throughout the industry day after day shift after shift hour after hour and yet he says oh well there may be a delay in the walls there's a do what we have known in terms of somebody also i think the dug out of hand in mine is probably the best example of why he is requiring cessation of production is not supported dug out cheney and minus ten to splits some goes to the left hand side some goes to the right hand side if they were mining on the left hand side you're going to be on the right hand side while the assistant secretary didn't consider those sorts of things he he rejected for open process and that is a significant that for there is a phrase in by just means it's as if you're in it or you're by that it's a directional phrase that we wrestle with throughout my career what it means is if i'm standing here and the working faces are where the wall behind you all are those faces are in by where i am what it means in terms of the last open crosscut the last cup and crosscut as we describe you mines a series of injuries as few as two as many as ten to twelve going into the mine and you drive crosscuts between them so they're all connected it's a grid like path the last open crosscut starts at the out by rail or the out by the edge of the pillar going toward the face in that last open cross it's across that doesn't have a permanent stopping in it that equipment travels in and the air was brought up and it's travels through the air that crosscut to  assistant secretary both in his requirement to cease production and his requirement with respect to vocal dos for example fail to consider some significant facts that i think make his decision arbitrary first of all he failed to consider that for flow called out to actually be explosive it has to be at a certain level which is twenty five thousand times but that's not all what he failed to consider he failed to consider the fact the this is an optical instrument i'm standing there with an electronic serving vice and i walk through the lens and i'm generally looking anywhere from one hundred to three hundred feet straight ahead to somebody who's the stream bounces it back while if you have any signal dust in the air it doesn't take much to get to the point where you can't survey accurately and you would have to stop and that's way short of an explosive release are you relying at all on the fact that rosebud for twenty years used this electronic equipment and has efficient they are ten times more accurate and that is significant because you not only are arm mining in mines like rose bud you have minds of all abandoned mines that you are trying to avoid because they may be full of water or what's known as black damp which is just oxygen low oxygen you are avoiding lakes rivers and the like the more accurate it is the better and there was testimony from mr hart saw who's been surveying his entire career that it is more efficient to survey with electronic surveying from what you are spending mechanical surveying from it and since it takes a longer survey it is for that reason it's an argument that frankly i don't carry should carry away i'm into my rebuttal times over no more questions all right thank you court my name is linda barr and i represent the secretary of labor byplay of his delegated authority to the assistant secretary of labor for mine safety and health whose decisions are before us today i also represent the mine safety and health administration otherwise known as with me at counsel table is mr chris shuman he is the appellate counsel in our office i'd like to start with to begin with a brief overview of the permissibility standards if you like just three or four sentences i just want to bring point out that the mine act and mandatory safety standards require multiple safety measures to protect against fires ignitions and explosions because the operator's alternative method eliminates anxious permissibility standards from electronic surveying a clip meant this is the secretary's conditions are necessary to offset that loss of protection the goal of the  permissibility standards is to prevent the use of equipment that could be a potential source for meth name or coal explosion or fire now the areas in or in via the last open cross cut in return air and within one hundred fifty feet of pillar workings or along our hazardous conditions with an increased risk of methane and coal dust due to mining activity i have two points that i wan emphasize today my first point is the operators got the exemption they needed from the permissibility requirements to allow the use of a lot of trying to serving a quick mint in these high risk areas as opposing counsel mentioned due to the current unavailable to be permissible electronic serving equipment or viable new mechanical serving acquit men the system secretary granted the petitions and he just didn't rubber stamp it doesn't count all brought to the court's attention that initially denied these tensions they were under the impression that there was adequate mechanical equipment available for the operator see it is in fact some of the mines testified on the record that they do indeed have mechanical surveying equipment at at their disposal however they did testify that it's used equipment and it may be hard to prepare find replacement parts the judge heard this the judge decided that based on this on availability of permissible or new viable use mechanical acquitted and that these petitions needed to be granted this is and secretary agreed with that finding that there was no practical alternative here so i just wanted to claim point out that the operators didn't get the exemption they sought trying to ask you is there anything in the record that tells us the percentage of mines that are using mechanical the percentage of mines that are using these non permissive or you get a picture of old worn out not worn out but old equipment to the pinnacle of this electronic equipment that if the safety measures are in place can be used do a better job and so forth and then there just doesn't seem to be any picture of where the mining industry is in this whether they're still back with ninety percent of them using mechanical or what there's nothing in the record no i don't recall any information to that effect in a record maybe it doesn't count so has a better idea of that it was not on the record i know in the secretary found that if new mechanical surveying equipment comes available and accurate serving can be performed under the standards there would be no need for these modifications he made that very clear to all of the operators involved and i just would note for the court that the secretary's rules of practice for petitions for modification do contain a provision for revoking previously granted modifications based on a change of circumstances or because findings which originally supported the modification are no longer valid that would be the case but i guess as to shut down  mine does that mean in order to meet the system secretary's condition that the mine has to be out of operation for a minimum period of time there was  twelve to thirteen percent of the surveyors time so total you have about fifteen percent of the surveyors time spent in these high risk areas so that meeting how the mine ha in production mode well if a surveyor is surveying for eight hours a day maybe fifteen percent of those eight hours we don't surveying is taking place right before the surveyor goes into that high risk area to perform the surveying so if i have a mind that has twenty sections in it and the surveyor wants to go into one section even though the sections are interconnected the surveyor and still go into that one section because there is no mining going on in that particular working yes yes it does and it would just pertain to the one section and only when the surveyors are in these high risk areas not when they're in other areas of the section but only when the surveyors want to survey  and it would only be in the section where the surveying would be occurring i think opposing counsel ltd the fact that many of these mines have more than one section operating so it's not shutting down the entire mine it's just shutting down the one section where the surveyors are working in those high risk take to make it permissible permissible but but he testified that he thought it could be done and there was also testimony in the record about equipment that's being used in other countries and the the  hope that these companies might submit their equipment to for approval and certification as permits of all some day that day is not yet we don't know how soon that date won't come if it will c they would want to purchase so we don't know if another company or that crowd said same company will improve their product and come out with a piece of mechanical serving up meant that will be accurate enough for surveying and underground coal mines we don't know when that day will come that the system secretary's position was that mechanical equipment may not be as accurate as electrical but you could repeat the mechanical survey and through repetition and up with something that does accurate a survey as would occur with electronic equipment that's correct these so by repetition does that double the amount of surveyor time in these dangerous areas it could but i would like to point out that these these circular surveys that the loop surveys at the survey  that can be done with mechanical equipment and electronic surveying equipment there was testimony that they do them with both types of equipment in order to increase the accuracy of the surveying accuracy but the electronic is all non permissible right at this is time z and you are using it according to the conditions that you impose yes these mines are using electrical equipment right now if they choose to do so under these explanation is that and she didn't know about it why not i have heard this is not on the record i heard these violations are hard to catch i don't recall that being on the record but and the system secretary in his decision did say maybe in a footnote but he did say that there was no evidence that engine knew that these the operators were listening let me ask you something and don't go outside the record  if it's in the record and i don't think it is from what you're saying how it is whether somebody is using mechanical serving of or electronic hard to catch problems how would that be would have to be down there when the surveying was occurring when the ensure inspectors arrive at the mine oftentimes miners know that the evidence factors are there you said they're doing this two or three times a week right that's what the record that's what i recall from the record the surveys are there two to three days a week and the inspectors may not be there while the surveyors are conducting their surveying work but there they do inspect regularly the second point i'd like to made very quickly is that the assistant secretary reasonably required multiple safety measures to assure that the use of the non permissive electronic serving equipment will not cause a mine explosion or fire the assistant secretaries are reasonable given the risks involved and so the system secretary properly exercised his discretion regarding the condition on cessation of production the assistant secretary found that that would protect miners by reducing the likelihood that the equipment will encounter fluid coal dust and explosive concentrations of methane and result in a methane or dust ignition or explosion the records indicate that non permissive all of the tronic farming equipment is not intrinsically safe and has an ignition potential that mechanical sharing equipment does not have there was testimony that the equipment can spark if there is something wrong with it for example this connection even the act of shutting the equipment off might create a spark and in addition the batteries in the equipment can short out and cause an arc now opposing counsel mentioned the case law on the credibility in the demeanor in the truthfulness and the end of days had the opportunity to observe the witnesses firsthand that may be true but looking at this in secretary's decisions you can see that he did not impede their demeanor and their truthfulness he relied on the science this is secretary looked at the reports of the operators witnesses equipment there just wasn't enough information about the use of the equipment underground since the equipment had them last serviced and cleaned so for these reasons the insistence the assistant secretary discounted their opinions he he causing the equipment to overheat and ignite methane and i just want to point out for the court that writer agreed that if their worst efficient openings dust could layer inside the equipment and cause it to overheat and that finding by the assistant secretary and writers the report also indicates that there were several or some old large openings in the instruments which may not be sealed or covered during use an operation to prevent  he also noted that the operators largely failed to provide record cites to him in evaluating their arguments however his review of the record indicated that the testimony was uncertain as exactly what entries the surveyors are surveying in where they set out how close to the face are they in the middle of the entry are they down when there was testimony by the operator as witnesses that usually we need to do this assistant secretary is requiring that production sees on the section before the serving equipment is used in these high risk areas in this group about the third condition is anything other than theoretical  what i'm hearing this morning is nobody's going to spend time coming up with mechanical equipment so to say to them as the third condition if there's a viable mechanical equipment you've got to go back to it of the challenge is that it's not safety related but you know it sounds like a condition that's just never going to be suspension he was concerned that about us being rapidly placed in suspension and local does layering on internal components of the equipment and causing equipment to overheat and ignite methane  in his decision and the record points out that activity other than active mining can cause low coal dust to go into suspension for example fans even exhaust from large pieces of equipment so active mining can cause focal dust but there is other activity in the mine that can also cause local dust so to the extent opposing counsel argue the condition is redundant i would argue that's not the case first and foremost is the amount of time and i finish my thought i just want to remind the court that the equipment the operators proposed to use are manufactured by topcon and has pacific explicit safety warnings not to use the equipment in underground coal mines and thus gassy and dusty areas and those warning certainly support with the assistant secretary imposed other branded modifications have these two conditions in and there is no indication in the records that any of the mines to which those granted modifications apply have been unable to comply with the conditions and those include some of the minds at issue in these cases and so we would say it in conclusion we would submit that the assistant it sounds like the operators don't want to cease production and because of the economic perhaps well i'm just trying to understand if you say all these other mines are having any problems why would these conditions  and the other two see directly related to production activities and you've indicated that as our teeth relayed by the assistant secretary it's a limited shutdown yes it's in the record that it's a small percentage of surveyors time spent i don't think it's like all right i'll let it go and i do believe that's why there was testimony in the record about in the incessant secretary's decision about these conditions not being overly burdensome because it's not an extensive part of the serious work to work in these high risk no no no i just want to be clear what we're dealing with in these cases that's all yes and council represented there two or three days a week there i believe the record also shows that in some sections there are in there every day ice second so we're all understand and i guess so i understand what this case is about it's the shutdown of production that's the real problem here that's the primary focus of a survey i tell section foreman i'm there and no matter where i am he's probably going to have to shut down because there's a case that you have this court decided years ago for even united it was a petition for modification case  and there were having to communicate across a section it's not you know you don't have a line of sight or anything like that and most times second of all i want to quote make it clear carmel you know who was in the industry and then went with them and i forget how long he was with him sure but it was some period of time and he was in an area where he would have inspected our impi mines around our rosebud mines and those mines were mines that he surveyed it with electronic equipment to answer another question i believe a majority of the what you're referring to your honor well these conditions were granted with dish and and then apparently on their minds where the titians have been granted with additions are complying with the conditions in using the electric the only mines that have actually granted petitions with these conditions are rose voting and in fuel everybody else who's got a petition for modification is waiting and there are an initial decisions from him sure were that they were going on all right but so i'm clear the applications for the modification included their own condition yes our yes they diagnostic and testing equipment and what we have we should be able to get out from underneath the production suspicion i have nothing further unless there are more questions all right thank you