year only four thank goodness it was a one really long trial and the a l j found that the four violations of front of you were non s n s and that was obviously reversed by the commission we believe that all of them should have been affirmed under the substantial evidence test and i really believe that you can resolve this case at that level but there is a second component to this case involving chevron deference and and actually more probably thinking skidmore deference but don't leave you have to get to that issue simply based on the substantial evidence and the standards that were applied below the commission basically used an argument that continued mining would have caused electrical problems without any proof of that they basically have substituted their judgment for the judgment of the ale j the cleaning case which is the accumulations that's the fourth citation base of the involved an area that was already being had been found by the company in the priest shift report the cleaning crew was on the way in fact if you look at the timing of that was written at seven o nine it's abated at eight o one in fifty two minutes basically and the inspector said it took approximately forty forty five minutes of cleaning that means the crew arrives somewhere within six of ten minutes of it being written and we believe the commission's reliance on cases that you may not happen when a company says it's going to happen really doesn't apply here and they say correctly looked at the aisle ation just let happen not cleaning it up that doesn't eliminate the violation but it does do to part three of mathis as to what is a s likelihood and that's where i'll kind of move into that where we are on this permissibility i think it's already explained in the breeze but it's about whether a electrical enclosure is sealed and how much of a gap exist what we're dealing with there is methane anything below five percent there's jelling on up methane but there isn't enough anything to ignite in thing over fifteen percent there's too much methane not enough oxygen so the range is five to fifteen percent  congress when it an act of the act could have determined that all violations were s n s it specifically did not do so and set up language that says you have to evaluate whether the violation could significantly and substantially contribute to the cause and effect of a mine safety hazard now the commission has developed a test that has been in effect now since one nine hundred eighty four called and we've ever see both sides of quarter that extensively in the briefs but if you look at the third element is the issue there and that is whether there's a reasonable likelihood that the hazard caused by the violation will result in an injury  just the fact that something could happen does not make it qualify under the third element under mathis and in fact the commission said you have to look at normal mining operations what has happened here is quite frankly that the you've got to show more than whether something could happen in fact in one of the cases that side of a both sides wolf run involving the sago mine disaster actually the commission send it back to the judge and said because he had said basically this could happen i found it's s and s they said no that it's got to be more than that that you've actually got to more precise  on where you are you started out by saying this is really the skidmore and she has brought us deference and i don't quite follow that that probably needs some there because it seems to me from when you look at the secretary of labor this interpretation of this particular provision is pretty clear at least to me it doesn't seem like congress has really spoken as to what this is therefore the chevron deference would kick in on it and when you look at the interpretation they rendered here the case looks pretty straightforward to me the actually there are two prongs this basically if it's resolved by substantial evidence you don't have to get into the chevron analysis and the deference issues there  issue on chevron versus skidmore goes to actually there's a couple of cases here the north fork case which was involving whether a miner on temporary and statement could continue to receive that when the secretary decide not to whether it's reasonable the court they are said litigation position is skidmore analysis this court and power fuels and lose early january or february of this year quoted both test and basically said we don't have to decide which one we go to because both are met and that's where that comes and i think the you only get to the second part here and this deals with the litigation position that at hearing the secretary attempted to argue through summary judgment that the judge had to presume that there was an explosion within the electrical containers and there because they couldn't prove that there was going to be one quite frankly they all j rejected that and said mathis is covered this for thirty plus years we have a test here to look at whether there's a reasonable likelihood of an injury from this event but may know i mean this is just to you i'm sorry for going to go about with sentence but just because the commission disagree with the l j doesn't mean that the commission adopted the presumption that the secretary was heard that that's not your i agree it is not as clear in the record as we would like the put it mildly and i and i tried this case five year scope the a l j rejected it the secretary it went to the commission the commission quoted the position and then goes on to do substantial deference  and of course it brief both sides of argued whether or not this presumption will be there whether you will want to even go there actually quite frankly i think i mean we don't have to agree to a first right you can or reverse commission it's not clear they actually relied upon this prism the secretary advance ok similarly in the briefing here they've they've suggested to you that any violation is a safety standard as s m s that's been rejected previously by the court by the commission it's also been rejected by the third circuit in the cumberland lifelike case and so my my view and why i guess i'm getting somewhat off i'm seeing the substantial evidence question relevant to the resolved the case under substantial evidence without getting to the presumption that's what judge davis was staring to in his questions our position is that this was a litigation position adopted by the secretary in the middle of this case the summary judgment was denied and that is not entirely chevron deference that is the skidmore review basically that's recognized by this court and was used by the sixth circuit in the north star case again that was a litigation position there that the individual  mean is that what you were responding to with i mean i'm having a hard time following your argument and this is obviously an area that you know better than i do think i'm really looking to you for help but i thought the secretary in the briefs put out a reading of the statute which relied on statutory language that had been more or less ignored by the mathis court and it would seem to me that that wouldn't even be i mean not maybe we're talking about deference but maybe we're talking about what the statute requires the they went to i mean maybe it's chevron one they went into the first i believe the same issue was looked at the third circuit and the cumberland case and they determined that chevron one did not just did not resolve it they had to go reasonable likelihood of pull the exact language just so we've there's a reasonable likelihood that the hazard caused by the violation will result in an injury it's not an actual injury it's reasonable like the injury doesn't appear in the wings that one we believe the case can be resolved on this is the factual determinations made by the a l j which were correct in the commission attempts to substitute its judgment and i we've both sides of briefs that heavily but there's a lot of discussion about how the wiring was multiple wrapped that were the inspector admitted there was no likelihood of imedi explosion he saw no indication of the sparking no electrical defects the case i believe can be resolved right there by upholding j's opinion under substantial evidence which the commission did not follow now when you move into the presumption and i bet he gets a lot more confusing at that stage the secretary has asked at the trial level that there be a presumption that there's an it can be resolved under chevron as well because quite frankly it's not a reasonable position to be taking example here of a couple of violations shows how this process works  there was an east up that was also in a sealed container that had a gap issue as well the j there found that because the way this switch operates it can produce a spark therefore there was ignition source and he found that was s n s he then looked at the other three violations extensively with experts from both sides plus witnesses from the company and the secretary that there were no electrical issues inside the box there was no evidence of any problem basically and that what the secretary was trying to advance was that there could be something happen that does not meet the mathis test and i don't believe it also meets the by the language they chose intended for there to be something shown more than just could and that's why we believe that the there really you don't have to get into the presumption adopted by the secretary but it is not appropriate under  would result in an injury in this situation looking at all the evidence presented below there's nothing in these electrical enclosures that's going to create a spark which is necessary for a reasonable likelihood of an injury and we believe the cited by the secretary are differentiated based on that and that this case should be applied under substantial evidence and that that's the appropriate standard i rose we've jumped a lot of different issues here and i apologize well and and my only that and maybe i'll just have to kind of work it through i don't think it's a question of whether not just we know should be applied by substantial evidence as the get significan of the question is what is a significant and substantial valentia which is more of a question of law is not a question of trying to make up fine it's a fact and once you go there you then determine well the statute doesn't tell you what  so then you then it then you go to see what has the agency spoken to them and i say they have and so if they spoke into it then to what extent then how does that affect us we give it chevron deference which is which sort of walks us to where we are well that's you know i mean that might sound simplistic but it really kind of see i it's one thing to say well there is substantial evidence but the question is what is substantial what constitutes significant and substantial violation you speak what is that and then it's not congress didn't tell you so you didn't agency does and it kind of tells you how to do it and so when it does what is done there then we review it becomes ask how deference review chevra the math this test has been used by the court but the commission since eighty four this court i know at least an equal energy recognized that i'm not aware of this court's actually adopted mathes formally other courts have and recognize this the standard and that is the there's a reasonable likelihood that the hazard caused by the violation or result in injury that is the actual on the stand matters test arose because congress had not spoken on this in the agency which had been the the argument that although we just for example divide the argument all violations are s and s was rejected by a case in the early about the same time period by the way that's the case all energy this case is before you that was trying to get in cumberland and again the court said no not ever violations going to be so this cumberland i think is that a unique case in that it was dealing with lifelines under a new provision of the miner act from two thousand and six sort of a case of first impression as to what would be the standard for emergency escape  an electrical permissibility had always been treated under the mathis test as a routine s n s to terminations and i don't believe there's any reason to change that based on litigation position taken by counsel and that's why i don't believe it's entitle to chevron deference me please the court philip aaron behalf of the secretary of labor judge when you're exactly right this is not a case about substantial evidence this is a case about interpretation of the significant and substantial language and section one  of how this i'm just confused and how we get to skidmore i understand it almost as though well this is not really the question because this particular item has been ruled to be what it  circuit and the eighth circuit has the secretary thinks held that the appropriate deference is chevron deference when the secretary has asserted statutory interpretation to the fact of issuing a citation and then through maintaining a consistent interpretation of the statute throughout the course of litigation that has been done in this case which is exactly what has been done in this case that's what the wamsley case said and this court reiterated that the secretary is the policy making entity whose entitle to deference in the speed mining time the secretaries espoused this interpretation absolutely not the secretary has across multiple types of different citations consistently urged that in but let me back up one second sure the secretary isn't challenging the math this test at this time we think that the correct result here follows from a correct application of the third prong of the matthys test as the commission has explained it and as in the muster case in the black beauty case the cases we cited pages twenty seven to twenty nine of our of our brief under that application of the math these test set it's appropriate to ask what if there is a rule that the question at step three is whether or not there's a reasonable likelihood that the hazard contributed to will result in an injury and what what knocks creek is urging is that the secretary be required to prove that the violation itself has a reasonable likelihood of resulting in injury the secretary has consistently opposed that interpretation that's what the secretary did in the muster case it's what the secretary did in the cumberland coal case so what secretary did in the consolidated coal case and counsel for the first time in reply mention brings up the case as hostile to the secretary's position but that omits the subsequent history of the wall from case wolf run was a case about lightning arrestor and the question was whether or not it was s n s to have inappropriately maintained lightning arrestor the law judge said exactly what knox creek is saying here late morning excuse me whining that applying that these and said lightning strikes aren't very common so there's no reasonable likelihood of an injury because there's no reasonable likelihood of lightning strikes secretary appealed that decision to the commission and the commission rejected that position unanimously in a four in a two to decision they split on the rationale two commissioners agreeing with the secretary's position that they should actually be a presumption of lightning and to commissioners this is to come back to your question judgments the secretary has consistently maintained an interpretation of prong three of matthijs which is really what's at stake here you're not wrong in the in the questions that you post to my friend about whether or not the math test itself follows entirely obviously from the text of the mine act and that was the case that to today you're not making that argument you know we're not making that argument that's correct that would probably be a permissible argument for the  observe that the text of the statute requires only that such violation be of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard i don't think there's any question that the permissibility violations  issue here would satisfy that text the secretary proved that hot gas could escape from these enclosures if if there were to be an explosion in the interior of the enclosures the secretary prove that there was a possibility of an explosion inside the enclosures and knox creek did not challenge that finding the possibility of an explosion or the possibility of an escape and so it's prohibited from doing so now not that any challenge under substantial evidence review would survive anyway as well if we adopted your view that would be the result that there'd be an automatic finding decision and the secretary is not disagreeing with the texas gulf decision that case actually involved allegations both that the secretary had not shown that there would be a high possibility of spiking our king and also that the secretary had not shown  the degree of methane emission that would happen in the mine and what the commission said it didn't talk about sparking our king it said quote the appropriate question is whether there's a reasonable likelihood of a sudden liberation of methane so as a matter of fact there might be very fact specific ways that an operator would not be liable under us or would not be significantly in substantially liable in a gassy mine for a permissibility violation perhaps it would be in an area where there were no miners present or there were no miners expected to be present so there wouldn't be a likelihood of an injury you know some enclosure had been left lying around a defunct part of the mine or something like that so it wouldn't be automatic but you're right to say that it would be true in most cases but i think that's a feature not a bug of the secretary's interpretation because as as you observed judge marks the statutory text is expansive and the math these test while it may be slightly less expansive than the text itself  not intended to create an onerous burden for the secretary and the commission's recent decisions that i keep referencing the mussar black beauty and cumberland colon consolidation coal decisions make that really clear i think it's worth spending at least a moment on the black beauty decision which is the berm decision that this that we talked about in our brief which was affirmed by the seventh circuit and under the name of peabody midwest coal in that case just as here an operator argued that the secretary had not carried his burden of demonstrating that a violation was an ass because the violation at issue there was having berms along the side of a road that had excavation equipment on it the operator presented evidence that it wasn't very likely that any trucks would actually go off this road because no trucks had driven close to the edge or weren't particularly likely to do so and said because that it's not reasonably likely that someone's actually going to drive off the edge step three of matthijs isn't satisfied commission rejected that argument and said and i quote the relevant question is not whether the lack of berms is reasonably likely to cause injury instead it is whether the hazard in question a vehicle veering off the road because of a lack of berms would be reasonably likely to cause injury the exact same logic here renders the permissibility violations s and s question isn't whether or not it was reasonably likely that there would be an explosion inside the enclosure the standard is designed to prevent against explosions inside the enclosure and explosions are supposed to be unlikely inside electrical enclosures the question here is whether that hazard dangerously hot gases scaping because the enclosure was not permissibly maintain would be likely to cause an injury and here because this was a gassy mine and because there were miners nearby that was that test is met the seven circuit of affirm that the black beauty decision i just referenced in almost identical we didn't adopt your proposed but if there the question does not become a substantial evidence question after that i think that it's pretty clear that there is an alternative holding in the commission's opinion basically saying that it has a confluence of factors test that it is used in a lot of cases to determine whether or not violations that pose a risk of fire in a mine or s n s and the commission cited a number of cases we've summarized them at page forty four of our brief in which the secretary had proven the potential ignition and a permissibility violation is a potential ignition source and gas in the mine and found that to be sufficient to satisfy the confluence of factors test knox creek as i mentioned earlier has not cited a single case in which the commission found a potential of ignition in a non gassy mine to be not s and s the closest thing is another case that knocks creek raises for the first time in its reply brief ziegler cold case and i we haven't had a chance to address that case either so i'd like to do so briefly in that case the commission said that the secretary had basically proven nothing but it could have proven that there could be a spark that there could be methane and reminded to the ale j for further determination as as we read that decision like the texas gulf decision that's about the secretary not proving a reasonable likelihood of methane which makes it not reasonably likely that there could be an injury in the event of hot gas escaping from an impermissible enclosure if the court has any doubts that that is the commission's understanding of the ziegler cole case the commission has said exactly that in a  case called excel mining just at thirty seven f m shrink or fifty nine footnote five of that decision which post dates the commission's decision in knox creek the commission has distinguished ziegle exactly the grounds that i just did if the court has no if i did want to address briefly chevron deference a judge when i think you i did speak to this a bit earlier skidmore deference all of the arguments the secretary has made about the statutory text about the fact that it would be counterintuitive to require proof of an event which is supposed to be on likely in order to establish that a dangerous violation i ass would apply with with equal force because under skidmore deference you would have deference to the secretary to the extent his position has the power to influence if there's no further questions on the permissibility violations then i'll turn to the accumulation of violations briefly  i think the accumulation violation is relatively straightforward creek has not acknowledged let alone attempted to distinguish the commission's us deal decision in which it held that  precisely what the commission applied here it recognized that there were miners on route or potentially miners on route to clean up the violation but said it didn't disagree with the judge's fact finding it didn't say we don't believe that the miners were coming it said that we cannot assume for purposes of the s n s analysis as a matter of law that miners are coming to clean out of violation as we explained in our brief that interpretation of what constitutes s and s is grounded in excellent policy motive quite simply miners don't always do what they're told they don't always do it properly and to require the secretary to prove that abatement would not have happened and in this case it might have been one thing but in general that would require the secretary to prove a negative i e that the operator would have found an abated a violation in a reasonable time  inspector was there when it was if the inspector was there when it was abated there's actually a case on exactly that question is l corn mccoy which is which we cite in our brief and even in that case the commission held that violation a power cable violation did hold that that that a piece of equipment that was completely out of operation and the operator had not scripted taken it out of operation and said it's not coming back on until we complete a safety review and  machine but in that case it wouldn't be s n s it's just i thought you billing it was assumption of without any assumption as to abatement and of course if you're there you know there's no assumption i mean you have it just i guess that's what the argument would be that would that is a cousin of that is the argument that they're making now right that would i don't think that the court needs to reach the question of what would happen if active abatement was ongoing at the time the inspector was there or there was a  citation in this case that raised that issue the secretary last we haven't appealed that decision right so i don't think you need to address it in your decision it's sufficient to say here what the commission unanimously said which is that when abatement has not actively begun when the operator has not taken the dangerous situation out of commission it hasn't you know roped it off or said we're not operating this then that doesn't affect the s n s analysis if the court has no further questions all the rest of my time that has dramatic effects on the operation i would just like to hit on the belt issue very quickly as you stated the inspector was there he watched the belt is only running and this is in both grease because the inspector asked him to turn it on so that he could inspect it on and off shift it was found at six thirty a crew was being dispatched to clean up the key relations with a high pressure water hose as noted by the inspector in the inform so within about six or seven minutes fifteen after twenty after the cleaning it out there prying private high pressure water hose to the area he already stated there was no smoke there was no heat there's no indication of the emission going on here factually there's no likelihood of an injury here and in fact it's established  the in the record that the production starts at seven thirty so this is even being cleaned up before the bells going to begin to be used for production so i think it's more aligned quite frankly with the bell electrical line that was out of service but it wasn't because the inspector wanted it turned on to be run and i think that clearly in the substantial evidence they all j was correct there dale j it's been quoted by both sides in remand again noted how that this was not the proper test s here and he's a former chief administrative law judge for the commission and has been doing this for about thirty years so that i believe quickly or basically that needs to be reversed on the belt i believe that on the presumption yes they have argued various points on partial they've agreed mathis applies second this idea of it presuming an explosion in the electric chair isn't the position it's not something if you look at the other cases cited you don't see that presumption being raised before so this is a new position i don't believe it is and i believe it is more skewed more based on a litigation position that's been adopted it's certainly not what evidence of the fact that there is no reason to adopt this new presumption that the secretary is advancing over presumably explosion inside of there and that if the as applied math test here means these are