complete control over mine in the event of an accident they're among the agency's most powerful tools because they're used to rescue miners and to prevent deaths and injuries here i'm sure properly exercised its plenary power three k when it took control of the m class number one mine after a miner was diagnosed with carbon monoxide poisoning and lost a court prefers otherwise i'll begin with the issue and then i'll move to the standard of review issue and then i'll very briefly touch on our argument that even if the commission selected the appropriate standard of review they misapplied it all right so turning to the secretary's position that this case is moot the commission was not able to give commission leader vacated that order there was no material change and cost of not get any additional material benefit to the extent that it did not get the benefit of not having that  no judge when the order was terminated it got its equipment back when the order was later vacated it had already had its equipment back now my point is when the order if you lost control of it equipment correct and so europe is that the commission has vacated the order the case is moot we our position is that once the order was terminated the case was moat didn't additionally change anything there's a well there's a mine safety retrieval system or data so still yes and  those the secretary that have any expungement procedure i believe but once the orders vacated it is expunged from the from the data system it's no longer happen with this order  i was under the impression that it has been expunged there are other terminated orders in the in the compliance history and so i if it is there i'm not sure why they could share typically removes those orders from from the compliance history and you have a regulation that says that no i just think that that's typical agency practice well based on what based on  removing that order from the from the compliance history did not actually confer an anon speculative benefit to em class they argue that that their reputation be vindicated should that order be removed from the from the compliance history and i have two points in response to that st reputation as an a cognizable interest under the miner act and nd the fact of the terminated k order on a compliance history doesn't suggest wrongdoing it doesn't suggest that but i'm cautious responsible for an accident it only as the commission says suggests that something occurred at the mine and so  o let me ask you just a hypothetical suppose a mine operator is closed down an accident order issues because a doctor said he thought his patient  suffering from carbon dioxide poisoning and so the inspector operates on that basis basis of that information shuts the wind out and months go by and the mine operator is trying to get his equipment back trying to get the agency to act and nothing happens as i disdain the secretary's decision she c avoid any judicial review terminating that order even if in my hypothetical it was irrational really unreasonable for the inspector to act on the basis of this information let's say two days after he inspected and found no evidence of carbon monoxide poisoning at the moment we so there is no remedy for the mine operator while there's expedited review that the mine operator c seek expedited review so there we know he's sought it it was denied and the equipment well is denied or he denied access to the equipment for a month yes that's correct but so you know it it it is an option to pursue i'm sorry go ahead it is an option to pursue expedited review and it's not the secretary's position that any order after it's terminated as is on  the agency does need to act reasonably how would you get review and you are going to say because it's been terminated well i do think that it could fall within an exception to modesto it's our position  saying it could come under an exception of capable of repetition yet they being reviewed yes it could although we know that subsequent orders have been issued against the  subsequent orders have been issued and they haven't been challenge and they've been terminated which i also think suggests that to the extent that i'm class argues that their reputation is harmed it's unclear why this particular order would create a reputation terminated and now but he has no way to get the agency to act because he did seek extradition yes i the agency must be reasonable and it's and it's exercise of its power under section answer k i'm sorry i two questions st of all what is your position with respect to vacating not only the commit well the commission's decision but also the air and the order itself been terminated already and so that would resolve all this distinction between terminations they cater i'm just wondering be whether we have a case or controversy you want the order vacated it seems to me if the case is moot the order gets question i have the last one is is there any provision there any practice we worried about reputational injury to vacate not when there's movements to vacate not only of the commission because that's public knowledge and anybody reading it would would think well maybe something happened in those i don't know whether there is judge i'm sorry ok don't you want to go even  order saying the case is moot and you know what the consequences of that would be anybody who really cared about it would know that the order was vacated not because it was valid or invalid but because the case was moo understandings of the situation can change when the inspector conducts an examination but that the purpose of the one of the three tayo order is to essentially assert the secretary's authority for that period of time until the inspection is continued and you know that the secretary knows basically where she is so why would we defer to that interpretation of the  of the search warrant you don't have to prove that a crime has been committed just probable cause and and even if i later investigation reveals that the individual is innocent of any the same thing would happen with a search warrant and items are seized we for a month or two months or whatever right again but if you know if i understand you correctly i think  this and my questions basically were focusing on ten the secretary asked in a way that basically avoids any judicial review well reputational so they the order could although unlikely in this case because we're three years removed from the the incident that that brought this case about it could be later part of a ok so a terminated one or three  if it had been had it been within the most recent twelve months however we're three years in from this incident so that's that's no longer an issue for imply specifically well  correct me if i'm wrong when i need to be clear on the chronology after the inspector determined that no accident had occurred as he originally thought based on the doctor's statement we the operator was still required to prepare a plan and the st plan was not satisfactory the nd plan was not satisfactory so if in fact the inspector found there was no accident then what was the basis for his requiring we operated come up with these plans or is that just a standard operating procedure any time an inspector looks at a mine he has the authority or she has the authority to require the operator as a matter of fact he tested the compressor underground before issuing the modification it out of service of ingenue the night after the it or was issue four hours after the order was issued that the compressor was not emitting elevated levels of carbon monoxide they didn't have any reasonable basis to remove the rest of service and they certainly did have a recent waste he put out of service for a month always the plan what was the substance of the plan that was required the substance of the plan and that can be found  thank you just a few points to make i want to address the argument that a terminated k order could be modified to impose additional enforcement actions that's not the case a terminated k order cannot be modified settlement i think but it was three k order the purpose of the want to three k is to give em shot control over the mine and so once that order is terminated that means that there is no longer a need to have control over the mine  and there's nothing further but can be modified so there's no risk that show would go back and modify this terminated k order and i think what is the nature of these clients that were wired you know i'm not i think that there was a discussion between the operator and you know on these plans and i'm under the impression that the operator wanted quick back and i was proposing intermediary measures while it conducted an inspection of the equipment i'm afraid i don't know this was that over a month yes and the and the inspection of the equipment lasted over a month it's not the case knew immediately that the equipment wasn't emitting carbon monoxide and i don't know that actually ever conclusively i don't know that i'm sure concluded that the equipment certainly wasn't emitting carbon monoxide that they conducted a thorough investigation three k order there is ak and forth between the operator and i'm sure about intermediary solutions i think that that standard although i'm afraid i don't know the details but you know this case right yes what happened  here i'm not clear on on what the what spoke with the operator about or would have required but i do know that the operator insisted on having its equipment back and i'm sure wasn't willing to release the equipment to the operator in tow i understand all that it all and no i don't think that it would and then just to another point to make i mean i'm just trying to pressure you so i understand how far the secretary goes on that suppose i'm the mine operator and i want my equipment back and inspector says yes but i need a plan and inspector says i want the plan to have five things in and i say that's going to cost me half a one million dollars specter says i want that plant and you don't get your qu until i get that plant i just want to understand what's happening in this situation it may be fine that the inspector needs a month to test the equipment but it's not the same as records and see what's there yes we yes and i'm i apologize about that and then i just briefly want to address the fact that the commission does say and mr chandler referenced less that a an inspector acting in good faith could issue a a k order under the circumstances if it were later vacated and that doesn't make sense for a few reasons the commission's holding is essentially that doesn't have authority to issue a k order at the outset of an accident in the last information becomes available later that that suggests that there was you know that concludes that an erroneous lee issued and that the inspector should have done something differently but i think that all parties agree oh i apologize i see that i think i may be over my time you want to finish your sentences yes thank you they get your implies that the inspector should have done something differently but i think all the parties agree the inspector acted correctly here and finally the the fact that the commission would allow an inspector to issue a k order as long as he later vacate suggests that the agency would be required to engage an unlawful action repeatedly and then a reset somehow and that doesn't make sense so i understand and are provided me with an understanding of what happens if we dismiss and that would happen to the a l j decision as well and then so they're both on the books yes so if the mine operator in the future is subject to a ten dollars foreign force and actually this history is relevant well the terminated k order would be on the books but that isn't the terminate care wouldn't have an effect on on any inforce meant under one for you know it wouldn't contribute to any penalties it wouldn't it wouldn't be taken into account it's just because it's terminated there's a record that it occurred and then was terminated but that's the and that's i think how it would how it would stand once the once so the operator doesn't get the record cleared no unless we vacate the one o three k order yes thank you thank you thank you anything further counsel no thank you but i will take the case under because thank you