The ALJ’s decision summarizes UBB lead investigator Norman Page’s rationale for establishing the protocol guidelines. Page determined a limited number of cameras should be underground, taking into consideration cameras are not permissible, gas checks must be made before they are used, and the inspection will proceed more quickly with only one photographer. In addressing the issue of mapping, Page again considered the issue of permissibility and the number of persons underground for purposes of safety.

After reviewing Page’s actions, Judge Miller concluded the secretary of labor “may insist on protocols she believes are necessary to ensure the safety of the investigation. While those protocols may not be what Performance wants or expects, they are nonetheless reasonable and intended to ensure the safety of all persons in the mine.”