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Case number 15-1008, DQ Fire and Explosion Consultants, Inc.

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Petitioner versus Secretary of Labor, Ed L. Mr. Moore for the petitioner, Ms.

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Theobald for the respondent.

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May it please the Court, I have reserved two minutes for rebuttal.

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This case is a case that involves the extension of the Mine Act

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to what is clearly not a traditional mining entity.

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DQ Fire and Explosion are experts.

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They're consulting on this.

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They were hired by one of Performance Coal law firms.

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What is your argument?

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They have to have some relation to the extraction process?

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Is that your argument?

[00:00:53] Speaker 01:
Yes, that's part of the argument.

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You help me on the question of, haven't we decided this already?

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In Otis Elevator, then Judge Thomas squarely rejected that argument, didn't he?

[00:01:06] Speaker 01:
He rejected that argument, Your Honor, but the question is, how far are you going to go on this?

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Well, he said, let me just read you a couple of provisions, and it seems pretty clear how far we're going to go, because this is a panel, and we're governed by the previous panel.

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In this case, the Commission concluded that not all independent contractors who perform services at mines are operators under the Mine Act.

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The Secretary disagrees, having promulgated regulations stating that any italicized person who contracts to perform services at a mine is an operator.

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For the reasons set forth below, we think the Secretary's reading is the correct one.

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Well, Your Honor, if you look at footnote three in that decision, then Judge Thomas said there would be situations where there may be de minimis contacts.

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And I don't believe de minimis is a matter of time, but in terms of what they actually are doing.

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Well, we specifically rejected the argument that it had to be related to the extraction process.

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Yes, you did, Your Honor.

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So now we're only on the meaning of de minimis?

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Is that the question?

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De minimis and how far you go, because here's the situation.

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When Congress passed this provision,

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All they were thinking about was independent contractors who did construction or who did things related to extraction.

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And that came from some legislative history?

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Yes.

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Which we expressly rejected in the case as being sufficient to decide the case, right?

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Report did say that.

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Judge Thomas did reject that.

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But I think if you look at the collection of cases, both here, the Fourth Circuit, Joy Technologies... Well, we rejected the Fourth Circuit's view.

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I understand that, Your Honor.

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Keep in mind here, the three of us are completely bound by Otis.

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We can't decide it's wrong or misread the legislative history or anything.

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I don't think Otis binds you here, Your Honor, because of footnote three.

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I see.

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Now, in Otis, they didn't give deference to the agency, right?

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Because at that point, the court hadn't decided whether we give Chevron deference to jurisdictional determinations.

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That's correct.

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The Supreme Court has now said we do.

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That is correct.

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So whatever Otis decides, that's only – we have to go even further.

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Now we have to defer to the agency unless it's unreasonable.

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What are we deferring to here?

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We're deferring to the meaning of the words, any person.

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But we're deferring to the agency in a litigation position here?

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Not just here.

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In every single case that they've taken, and in this case it's before, it's a position.

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We've already decided that we in Kenilton

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and about eight other cases involving Misha, that we have to defer to the position they take in adjudications for the Mishrek, right?

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Well, the problem we have here, Your Honor, is this case in a sense is sui generis.

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because while Otis, they were doing something that the miners in the mine were involved with, riding the elevator every day.

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Same with Joy Technologies.

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In this case, we don't have, we have a mine that's essentially shut down.

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It's M-ship controlled and we have an entity

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that their sole purpose there is to gather information to provide information to counsel for performance.

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But Mr. Moore, I'm not sure that really helps you, because they're gathering information on a catastrophic mine accident.

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And the principal purpose of the Mine Act is to protect the safety of the miners.

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And one of the principal purposes of investigating mine accidents is to figure out why they happen and protect the miners.

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So this is not just riding in the elevator.

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This is mining in the mine at the risk of death.

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Except what this particular entity is doing, what DQ is doing,

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is not for the purposes of additional regulations of the light.

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Whatever DQ did wouldn't sway MSHAF from its position when it came out with its report.

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And so whatever DQ is doing is defensive

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And in that sense, it's simply a defense against whatever IMCHA comes up with.

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Now, that never was, DQ never issued a report because what happened was performances, Parrot was bought by Alpha Natural Resources, which settled everything to, so they could get on with life, so to speak.

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But DQ isn't,

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serving a purpose of the act.

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What they are doing is they're serving a purpose of defending an operator from whatever conclusion MSHA comes up with.

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I mean, even if MSHA is correct, they would take the opposite position and say that MSHA is wrong.

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Even if their own safety investigation discloses that MSHA is correct, they would come in and say, no, no, it's not true.

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Not necessarily.

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Well, not at all, I assume.

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If they've concluded that the mine was unsafe and they came in and said the mine is safe, they risk considerable liability, don't they?

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Including criminal liability.

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Yes, they do.

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And what we don't know

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is it was never played out in any public forum as to the opposite opinion that DQ might have.

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But recognize also, if Ayrshire tells you this is for the purposes of the act, it clearly isn't.

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Because what Ayrshire was doing was trying to restrict their investigation.

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They were trying to keep them out of the critical area

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I don't know why that's so surprising.

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They didn't want him to mess with the evidence.

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That seems perfectly – either to mess with the evidence or themselves to be injured.

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Both of those seem to be consistent with the Mine Act.

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Well, except for that Amstrad had completed its investigation in the mine.

[00:07:16] Speaker 02:
Well, that appears to be disputed.

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If you were right that they had completed it, then the order would be wrong.

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But we've got to start with the theory that the order is correct.

[00:07:24] Speaker 01:
They advised that their investigation wasn't complete, but essentially they let performance start doing the investigation.

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There is no way, based on the facts of this case, that DQ could have messed with the evidence.

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You have to remember what they had with them.

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When they were underground?

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Let me just say, so you have to win both arguments in order to win?

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Is that what you're saying?

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Because the argument you're making now is whether the order was itself arbitrary and capricious to extend as long as it did.

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The other argument you opened with was an interpretation of the statute.

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I do not have to win both arguments.

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I can win either one.

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All right, so let's assume you're wrong on the arbitrary or capricious argument and that the order is perfectly appropriate.

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Because they did not, because MSHA's investigation was still going on, and they didn't want you to mess with the evidence.

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The problem with that is that you've got the modification to the order back in December.

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And then what you have here is three instances in one week where you have an individual from MSHA giving permission to go into certain areas of what is known as Zone 5.

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And what happened is after that week, and the MCHA says, well, you couldn't modify it otherwise with a designated authorized representative and secretary.

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Well, Mr. Dubina, who was with this inspection team, had that appearance.

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But, we'll back up for a second.

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We've got the three instances in a week.

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And what did MCHA do?

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They waited until the next week.

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They said, well, one of them is OK, but the other two aren't.

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Now we have moved on to the second argument, not to the second.

[00:09:11] Speaker 01:
Yes, we have moved on to the second argument, Your Honor.

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And we believe that given the fact that that order, of course, the way it was written back in December, clearly wasn't the way it was applied in the mine.

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and recognized that I don't know who at Emsha wrote the order.

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And the person whose name on the bottom probably wasn't the person who actually wrote the order.

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The absolutist language clearly wasn't what Emsha was applying in the mind.

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So if that is indeed the case, then the application of the order to result in a citation was improper, because they should have excused all three, because that's what they did with one of them.

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What you have here is, in a sense, an entrapment.

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Amchus sent somebody along with the team who was clearly asked questions if they could do things, and he said yes.

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And then all of a sudden, oh, no, that's wrong.

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Come Friday afternoon, that's fine.

[00:10:18] Speaker 04:
Mr. Moore, we know from our earlier decision in the performance call in 2011 that this order was modified, I think it was 60 times.

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Do we know whether in any of those instances there was a kind of on the ground oral modification as your client asserts took place in this case?

[00:10:42] Speaker 01:
Well, I cannot tell you that.

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I was not on the ground with this investigation.

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Since I only represent DQ, I do not represent performance.

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So I can't speak to that.

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All I can do is speak to, in other investigations that I have been on the ground, things have been worked out as you went along in an investigation.

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this investigation seemed to be more acrimonious than most because it's the only one I ever knew to get to this court or any other court of appeals on the K order as to what the scope was and it's frankly the only one where I know that an expert who was retained by the operator was cited for anything.

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And it seems to me that we have a situation where

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for whatever reason, MSHA peers who overreacted in early January and should not have issued that citation.

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They should simply have modified the order and said.

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And recognizing also they cited performance, who was the appropriate person to cite if you, as far as I'm concerned, that that's where it should have stopped.

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And one of the things is, in government exhibit eight, which is the notes of one of the inspectors, Mr. Maggard, he said when he talked to Dr. Reska on Thursday or Friday, he explained the K order to him.

[00:12:23] Speaker 01:
Well, if this is also clear-cut, non-modifiable by any other means, that would seem to be superfluous.

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But it wasn't in his mind, and he was one of the people on the ground.

[00:12:36] Speaker 02:
I think you're well into rebuttal, so.

[00:12:38] Speaker 01:
Yes, I apologize.

[00:12:39] Speaker 02:
No, nothing to apologize about.

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We were asking you questions.

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You're from the government.

[00:12:53] Speaker 05:
May it please the court.

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My name is Molly Theobald and I represent the Secretary of Labor.

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As the court is already aware, and we've already discussed this morning, this case arises out of the accident investigation at the upper big branch mine.

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This case consists of five issues.

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Four of the issues involve a 103 K order.

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And if the court has no questions for me on the interpretive question of whether DQ is an operator, I will move on to those issues pertaining to the 103 K order.

[00:13:24] Speaker 02:
I don't hear any questions.

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I'll start with the validity of the K order.

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Emsha was within its discretion in maintaining the 103K order through the January dates at issue, because there were still ongoing safety risks within zone five, including the potential for roof fall.

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And because there were important pieces of evidence that had yet to be collected, including bits of the shear.

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Section 103K orders are issued.

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What was the concern about the evidence?

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What was the concern about what, why did it matter whether these experts walked around amongst the evidence?

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Emsha was hoping to prevent any disruption to the accident scene while Emsha was proceeding with its own investigation.

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uh... entrance issuance of what if you pay orders are reviewed under the abuse of discretion standard and here at the a l j credited testimony uh... from actual witness uh... michael rye on about the ongoing investigative activities in zone five and test and credited to be nice testimony and set employee to be assessed money uh... regarding the safety risks uh... so

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ALJ concluded that Emsha was within its discretion to maintain the 103k order and this court should affirm.

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I will now turn to DQ's violation of the 103K order.

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There's no dispute that DQ entered Zone 5 on the dates at issue.

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The dispute turns on whether the 103K order was modified and whether the dispute turns on two competing accounts of the proper procedure for modifying the K order.

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And as did DQ and in reviewing the record as a whole, the ALJ credited the testimony from EMSA authorized representative McElroy.

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that the proper procedure for modifying the K order required a request by the operator, at least the night before, and that MSHA deliver a modification of the K order.

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And do you have any insight into all those prior modifications of several dozen?

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Is it always done in writing like that?

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Are there any examples of instances in which an authorized person from MSHA is with others in the mine and can give them

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on the fly authorization?

[00:16:14] Speaker 05:
There is no evidence in the record of that type of modification being issued like that on the ground.

[00:16:23] Speaker 05:
There is an example on page 83 of the joint appendix of a written modification of the K order.

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The December 23rd 103 K order was itself a modification.

[00:16:40] Speaker 02:
On the next page, J84 at the bottom, it says, any modifications to the existing investigation plan.

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Does that not apply to DQ or does it?

[00:16:52] Speaker 04:
I'm sorry, say that again?

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At the bottom of JA-84, the top of JA-84 is the words that say, no person shall be permitted in Zone 5 to conduct any activities other than for the purpose of conducting examinations required by the regulations.

[00:17:07] Speaker 02:
And PQ is not doing that, right?

[00:17:10] Speaker 00:
Correct.

[00:17:10] Speaker 02:
And that's the ground for the theory that they were not allowed to enter Zone 5.

[00:17:14] Speaker 05:
That's correct, Your Honor.

[00:17:15] Speaker 02:
On the bottom, it says on the same page, any modifications to the existing investigation plan

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Shall be submitted to them to and shows accident investigation team.

[00:17:28] Speaker 02:
What is that?

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Is that the provision where you're saying?

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It explains how modification should be done, or is that about something different?

[00:17:36] Speaker 05:
Well, the ALJ relied on testimony from McElroy to find the proper procedure for the modification.

[00:17:44] Speaker 02:
But it's not otherwise written anywhere how to modify it?

[00:17:48] Speaker 05:
No, Your Honor.

[00:17:49] Speaker 02:
So this paragraph at the bottom doesn't apply to this situation?

[00:17:53] Speaker 04:
This wouldn't be a modification of the existing investigation plan?

[00:17:57] Speaker 04:
I understand your question.

[00:17:59] Speaker 05:
This is a modification to the investigation plan.

[00:18:06] Speaker 05:
to note to uh... performance polls investigation so they were required already to provide uh... updates and changes to their investigation plan in general not uh... so this isn't have to do with modifying the key order so that they can enter zone five

[00:18:28] Speaker 02:
it doesn't.

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I thought it didn't since nobody addressed my attention to it, I just wanted to make sure.

[00:18:34] Speaker 05:
The investigation could change and the investigation involved more areas than just zone five.

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So if, and because this is a dangerous situation, a post-accident scene or post-accident mine, they

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and shine performance cold, we're communicating constantly about where teams were going each day so they could track where people were in the mine, whether or not they were in zone five.

[00:19:06] Speaker 02:
Right.

[00:19:06] Speaker 02:
So just this may be just a small point, but I just want to be clear the part at the top that says no person shall be permitted to conduct any activities other than for purpose of conducting examinations.

[00:19:18] Speaker 02:
Was performance cold

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conducting activities for the purpose of conducting examinations?

[00:19:25] Speaker 05:
No, they were not.

[00:19:26] Speaker 05:
They testified that they were not.

[00:19:28] Speaker 02:
Okay.

[00:19:28] Speaker 02:
So at the bottom, when it says any modifications to the investigation, existing investigation plan, is this overall this requirement that no one can go into zone five unless they're conducting examinations?

[00:19:46] Speaker 02:
this reference to modifications.

[00:19:48] Speaker 02:
Is that about how you would go about modifying the provision about zone five?

[00:19:53] Speaker 02:
Or it's just totally unrelated?

[00:19:55] Speaker 05:
It's unrelated because, and this is part of what the ALJ was pointing to when he said that DQ was conflating the procedures for complying with the stipulation of the December 23rd K order with procedures for modifying

[00:20:15] Speaker 05:
the December 23rd 103 K order.

[00:20:19] Speaker 05:
So there are stipulations requiring that there's an ongoing investigation plan within the mine.

[00:20:25] Speaker 05:
And this is merely reads to say that the in the investigative activities would need to be communicated to Emsha.

[00:20:36] Speaker 03:
Can you tell me how you get

[00:20:44] Speaker 03:
Given the odd circumstances and the Commission's understanding that there was some confusion, if there was confusion initially, why wouldn't the confusion continue?

[00:20:59] Speaker 03:
And so how do you get one date modified and not the other two?

[00:21:03] Speaker 03:
And frankly, it looks like the Commission mischaracterized the ALJ's funding for January 12 to make it sounds other than what it was.

[00:21:14] Speaker 03:
the uh... how do you get high negligence on a situation like this if someone is being misled obviously the commission seems to accept that because it changed one day the there were no mitigating circumstances because first the ALJ found that there were no informal procedures as

[00:21:41] Speaker 05:
offered by dq uh... dq did not follow the informal procedures that it proposed were in existence and the a l j held that that dq did not follow those procedures and that's that's not the point of the point is there was potential innocence here or being misled because of following an agency person into the line

[00:22:11] Speaker 05:
The MSHA looked at the circumstances on the 10th and on the 11th and 12th and did, in fact, distinguish between the events that took place on the 10th and the events that took place on the 11th and 12th.

[00:22:25] Speaker 05:
So on the 10th, Dubino, while the investigative team was already in zone five, said OK when members of the DQ investigative team asked to look out further at the shear.

[00:22:39] Speaker 05:
On the 11th and 12th, Dubina testified that he did not grant permission.

[00:22:47] Speaker 05:
And the ALJ, looking at the record, found that those were, the circumstances were different.

[00:22:54] Speaker 05:
And that even if DQ thought that these informal procedures were in place, they had failed to follow them.

[00:23:07] Speaker 03:
is the ALJ appeared to credit Davina's testimony that Davina did not recall granting permission to enter Zone 5.

[00:23:21] Speaker 03:
I don't see a problem with that.

[00:23:33] Speaker 03:
I don't know how you get from that

[00:23:54] Speaker 05:
The ALJ, in citing to that, in the paragraph where he found that DQ had not followed its own procedures, considered Dubina's testimony to be credible.

[00:24:15] Speaker 03:
Yeah, but Dubina didn't say anything.

[00:24:20] Speaker 03:
didn't recall, but admitted under gross examination that this phrase that was attributed to him was not untypical.

[00:24:27] Speaker 03:
So I mean, I don't know where that puts us.

[00:24:29] Speaker 05:
In the record, Dubina does testify that he did not grant permission for DQ to enter zone five on the 11th or the 12th.

[00:24:46] Speaker 02:
for the questions?

[00:24:47] Speaker 02:
No.

[00:24:49] Speaker 02:
Okay, thank you very much.

[00:24:49] Speaker 05:
Thank you very much.

[00:24:51] Speaker 02:
How many minutes left, if any?

[00:24:54] Speaker 02:
Okay, we'll give you two minutes.

[00:24:55] Speaker 01:
Okay, thank you.

[00:24:58] Speaker 01:
Let me be brief.

[00:25:01] Speaker 01:
The informal procedures for modification that we talked about were actually to be done by performance.

[00:25:09] Speaker 01:
They were to make the telephone call to MSHA and they were to send the email.

[00:25:14] Speaker 01:
It's not DQ failing to do that.

[00:25:17] Speaker 01:
The order was issued to performance, and it's performance's responsibility, not DQ's.

[00:25:23] Speaker 01:
That's the first thing.

[00:25:25] Speaker 01:
Second thing is, if in fact Mr. Dubina said that he didn't grant permission on the 11th and 12th, he behaved rather rightly.

[00:25:34] Speaker 01:
He went along.

[00:25:36] Speaker 01:
Uh, he didn't call out.

[00:25:38] Speaker 01:
There were phones available.

[00:25:39] Speaker 01:
He didn't call out or do anything like that.

[00:25:41] Speaker 01:
He just went along and he didn't say, no, you can't do this.

[00:25:45] Speaker 01:
Because if he'd said that, both

[00:25:49] Speaker 01:
Dr. Reska and Danny Labyrinth from performance would have stopped.

[00:25:52] Speaker 02:
Well, I take it that that wasn't his job, right?

[00:25:56] Speaker 02:
The government's position is he is a different kind of person.

[00:26:00] Speaker 02:
He doesn't have the authority to do that.

[00:26:02] Speaker 01:
He never told the people on that inspection.

[00:26:05] Speaker 02:
Well, that's not, he says that they had reason to know by the 11th.

[00:26:10] Speaker 02:
And he did not have authority.

[00:26:12] Speaker 01:
And he gave no reason why they had reason to know.

[00:26:14] Speaker 01:
And he behaved on those days as if he had that authority.

[00:26:18] Speaker 02:
The ALJ found him not credible.

[00:26:23] Speaker 02:
They found your guy not credible.

[00:26:26] Speaker 01:
On that, yes he did, Your Honor, but the thing is, take Mr. Dubina's testimony by itself.

[00:26:33] Speaker 01:
What he's saying is he didn't give permission, but he went along.

[00:26:38] Speaker 04:
Mr. Moore, this is a highly professional outfit, presumably DQ, and they're coming in as experts in a really serious

[00:26:52] Speaker 04:
mine accident, and I guess the IMSA position, as I understand it, is that it is the affirmative obligation of performance and DQ to know the ropes.

[00:27:07] Speaker 04:
And there's a lot of intuitive appeal to your position that they're there, somebody who's wearing an IMSA hat says yes,

[00:27:16] Speaker 04:
But I think their supervening position is we require more sort of chapter-inverse knowledge of lines of authority than that.

[00:27:25] Speaker 04:
And I'd be curious about your response to that.

[00:27:27] Speaker 01:
Well, Your Honor, DQ are professional scientists.

[00:27:33] Speaker 01:
They're not coal miners.

[00:27:35] Speaker 01:
And every time they went underground, performance assigned an individual with them who was a professional coal miner.

[00:27:44] Speaker 01:
BQ was there to gather scientific evidence.

[00:27:49] Speaker 01:
AMSHA's presumption that they should know the ins and outs of the Mine Act is, I believe, simply that, a presumption that has, we all know, basis in fact.

[00:28:00] Speaker 01:
There were lots of people with this group underground, all of whom were experienced miners, and yet we have

[00:28:09] Speaker 01:
Mr. DeVita, who's a very experienced MSHA guy, he's been there throughout the investigation and all of a sudden he doesn't have the authority.

[00:28:17] Speaker 01:
So I think that while MSHA would like to make us assumptions, presumptions about what DQ should know, when they issued that K modification, they issued it to performance.

[00:28:34] Speaker 01:
That's not issued to DQ.

[00:28:36] Speaker 01:
AMSHA thought that they might not even know about it, and in Inspector Maggert's notes, he said, I showed him the 103K modification.

[00:28:51] Speaker 01:
So I think that what AMSHA thinks

[00:28:56] Speaker 01:
It's, I think, frankly, a parochial view.

[00:28:58] Speaker 01:
They're not used to dealing with people who are true fire and explosion experts.

[00:29:04] Speaker 01:
I'll make one final comment.

[00:29:05] Speaker 01:
I know I'm out of time.

[00:29:08] Speaker 01:
In terms of disturbing sites, if you look at page JA86, it spells out all the things performance has to do when they are underground and reports photos and all of the like.

[00:29:19] Speaker 01:
And if they pick up anything, they've got to report it to MSHEC and all of that.

[00:29:24] Speaker 01:
So I don't think there's actual

[00:29:26] Speaker 01:
concern about disturbing a site.

[00:29:28] Speaker 01:
The last thing is the examinations that we've referred to, they are what's known as pre-shift examinations.

[00:29:34] Speaker 01:
They were being done once of the entire mine, three times a day, and they were done by certified mine examiners.

[00:29:41] Speaker 01:
That's what they're talking about.

[00:29:43] Speaker 01:
And so when we're talking about safety,

[00:29:47] Speaker 01:
We're talking about a mine that nothing is going on, but is ventilated, is examined.

[00:29:52] Speaker 01:
And yes, Switzer mentioned roof falls.

[00:29:56] Speaker 01:
That's not specific to post-explosion problems.

[00:30:01] Speaker 01:
And frankly, in terms of tests and things like that, if IMSA did tests, they'd all be there, and everybody would be watching them, including the people from performance.

[00:30:11] Speaker 01:
With no further questions, thank you.

[00:30:12] Speaker 02:
All right, we'll take the matter under submission.

[00:30:14] Speaker 02:
Thank you both.