[00:00:01] Speaker 03: Case number 14-1206, the American Coal Company Petitioner versus Federal Mine Safety and Health Review Commission and Department of Labor. [00:00:09] Speaker 03: Mr. Harden for the petitioner, Mr. Feingold for the respondent. [00:00:19] Speaker 01: Morning. [00:00:20] Speaker 01: I reserve two minutes for rebuttal. [00:00:23] Speaker 01: May it please the court, my name is Jason Harden and I represent the petitioner, the American Coal Company. [00:00:28] Speaker 01: This case concerns the definition of fire as used in the definition of accident in section 3K of the Mine Act, as that term is applied in section 103K of the Mine Act. [00:00:41] Speaker 01: Section 103K grants the Secretary of Labor and his inspectors broad authority to issue control orders at one of the nation's many mines when an accident, quote, is occurring. [00:00:53] Speaker 01: It's undisputed that Congress enacted Section 103K to respond to accidents. [00:01:00] Speaker 01: So the question is, what was the accident here? [00:01:03] Speaker 01: It was a cold January morning in 2010. [00:01:08] Speaker 02: Is smoldering combustion itself a source of danger? [00:01:14] Speaker 02: Stay away from the definition of mine fire just for a second. [00:01:18] Speaker 02: We'll get to that. [00:01:18] Speaker 02: I realize the case is about that. [00:01:20] Speaker 02: But just from my understanding, is a smoldering combustion, whatever you want to call it, is that itself an independent source of danger to workers? [00:01:31] Speaker 01: It could be. [00:01:32] Speaker 01: It could be judged. [00:01:33] Speaker 01: Depending on the circumstances, absolutely it could be, in a mining context. [00:01:37] Speaker 01: But the question is, was it? [00:01:39] Speaker 02: But your argument is that Congress didn't intend to be that broad. [00:01:45] Speaker 02: It intended to identify a situation where there was a flame. [00:01:50] Speaker 01: Well, this case isn't about the meaning of the term accident. [00:01:54] Speaker 01: This case is about the meaning of the term fire, as stipulated by the parties. [00:01:57] Speaker 02: Which is surprising to me that it is not about the term accident. [00:02:01] Speaker 02: I mean, we have a tennery problem here. [00:02:03] Speaker 02: It's just stunning to me that that would not be what this case is about. [00:02:07] Speaker 02: I have no idea why the commission chose to argue this case so narrowly, but you're right. [00:02:12] Speaker 01: And that's the point is that under the number of accident, [00:02:17] Speaker 01: We would admit that smoldering, given the circumstances, perhaps an underground situation in a confined space, could be an accident. [00:02:23] Speaker 01: But not a fire. [00:02:23] Speaker 01: But not a fire. [00:02:24] Speaker 01: Yeah. [00:02:24] Speaker 01: And that's what this case is about. [00:02:25] Speaker 02: But why isn't it a mine fire? [00:02:28] Speaker 02: I found your argument a little bit odd. [00:02:31] Speaker 02: Maybe I didn't understand it, that we can't look at the word mine. [00:02:34] Speaker 01: No, you can. [00:02:35] Speaker 01: I mean, our argument is not that you can look at the word mine. [00:02:38] Speaker 01: The bigger point is that the Secretary didn't really even raise it until this appeal, but it's the term fire as used in the Mine Act, and the Secretary has said with the mandate of safety and health, that is what expands fire. [00:02:51] Speaker 02: Do you acknowledge that the phrase mine fire might be different than the word just fire? [00:02:57] Speaker 02: That mine adds a context here that might make it different? [00:03:01] Speaker 01: That's correct, and I would say that Section 3K does say the phrase, mind fire. [00:03:08] Speaker 01: But the secretary here has chosen to interpret the phrase, fire. [00:03:11] Speaker 01: And if you go back and look at all of the statements before the administrative law judge, [00:03:16] Speaker 01: And on the initial appeal before the commission, the secretary interpreted the word fire. [00:03:21] Speaker 01: And in fact, even in their briefing here, they admit that a mine fire is a fire in a mine. [00:03:25] Speaker 01: And mine is defined specifically in section three of the Mine Act. [00:03:30] Speaker 01: It's also defined there. [00:03:31] Speaker 01: So it's a fire in a mine. [00:03:32] Speaker 01: Now, it's also defined in the context of the Mine Act, and we don't get around that. [00:03:37] Speaker 01: But the point is, can the Mine Act or the word mine change [00:03:41] Speaker 02: Your argument, this wasn't in a mine. [00:03:43] Speaker 02: This was outside the mine. [00:03:44] Speaker 01: Well, it was. [00:03:44] Speaker 01: I mean, the surface stockpile was part of the mine. [00:03:46] Speaker 01: There's no question. [00:03:47] Speaker 01: But the fact is that here, this was a large, isolated coal stockpile on the surface, not in a confined space, no flames, no glowing embers. [00:03:57] Speaker 01: No carbon monoxide. [00:03:59] Speaker 01: But smoke. [00:03:59] Speaker 02: And I'm going to resist the temptation to say, well, there's smoke, there's fire. [00:04:03] Speaker 02: But there's smoke, right? [00:04:04] Speaker 01: Well, and there was whitish smoke, which is telling in and of itself. [00:04:08] Speaker 01: I mean, what does white smoke mean? [00:04:10] Speaker 01: I mean, some of the... Let's see, what does it mean? [00:04:12] Speaker 01: I can't remember. [00:04:13] Speaker 01: Is it dark smoke or a new pump? [00:04:15] Speaker 01: Well, you know, and the question is, is there smoke, there's fire? [00:04:19] Speaker 01: And the question is, if that's what the secretary's interpretation was, then why didn't they say that? [00:04:22] Speaker 01: They didn't. [00:04:23] Speaker 01: And that's because where there's smoke, there's not always fire. [00:04:27] Speaker 01: where there's flames, there is always fire. [00:04:31] Speaker 01: There is a thing called pre-combustion, which I think is not without, it's defined in some of the dictionaries, it's talked about in some of these treatises, where there is no combustion going on, but coal self-heats and emits a whitish smoke. [00:04:42] Speaker 05: Mr. Herring, can you tell us a little bit more about that? [00:04:44] Speaker 05: You talk about the self-heating coal piles. [00:04:48] Speaker 05: What's going on then? [00:04:50] Speaker 05: How common is it? [00:04:51] Speaker 05: Well, yes, it's determines whether it's gonna Continue and develop or does it dissipate on its own? [00:04:59] Speaker 01: Well, that's that's one of the things that we've outlined in our in our briefing and there's in fact one of the References in our denim goes back almost a hundred years talking about the self heating of coal even then I think as long as coal has been mined and put in a pile people have known that it has the ability to self heat and [00:05:16] Speaker 01: Now, that doesn't mean it's always going to catch on fire. [00:05:19] Speaker 01: In fact, even in your own backyard, when you light charcoal, which has wood in it to help it burn, you often have to put on lighter fluid to actually make it burn. [00:05:27] Speaker 01: It often doesn't. [00:05:28] Speaker 01: But it does have the ability to self-heat. [00:05:30] Speaker 01: And I think as the secretary's materials and AMCO's materials make clear, [00:05:34] Speaker 01: It can often self heat for months without ever combusting into smoldering or into flaming combustion, and it can still emit smoke in those circumstances. [00:05:43] Speaker 05: I know that you've identified it as a phenomenon, but can you tell us a little bit more about what's going on chemically and why that happens? [00:05:52] Speaker 01: Well, the issue is should that type of a, I guess the question is, is the self-heating of coal by itself, is that a fire for purposes of a mind map? [00:06:00] Speaker 05: That wasn't really what I was asking. [00:06:01] Speaker 05: I was asking just sort of a more basic question, a less tendentious question, just if you could help us understand why something that's an organic compound that's lying on the ground [00:06:10] Speaker 05: I mean, where is the energy coming from and why is that? [00:06:12] Speaker 01: Well, I think that it's long been known that if you pile and studied all over, that if you can pile a bunch of organic material on top of each other, it oftentimes can self-heat. [00:06:21] Speaker 01: And I'm not a chemist, I can't tell you what the process is, but I think it's known and studied that organic materials, including coal, which are piled up, [00:06:29] Speaker 01: can at times self-heat. [00:06:31] Speaker 01: And then the question becomes, in this case, is does that rise to the level of a fire for purposes of an accident as applied to Section 103K of the Mine Act? [00:06:42] Speaker 01: And I think this case, you can't forget about where this was. [00:06:47] Speaker 01: This was a surface coal stockpile. [00:06:50] Speaker 01: It wasn't underground. [00:06:51] Speaker 01: It poses a different hazard than smoldering or pre-combustion or self-heating of coal underground. [00:06:58] Speaker 01: thousands of stockpiles on the surface around the country. [00:07:01] Speaker 01: And AMCO is unaware of any situation before this in the past 30 years of enforcement of the MINE Act where the IMSA or its inspectors issued a section 103K order when there was simply smoke on a pile. [00:07:14] Speaker 05: When you talk about subcritical heating, what's the critical referring to? [00:07:18] Speaker 01: Well, the critical is the moment when it combusts. [00:07:20] Speaker 01: So subcritical heating means the heating before combustion. [00:07:24] Speaker 01: And so the point here is that there's really three stages of self-heating of coal to a fire. [00:07:30] Speaker 01: One is pre-combustion. [00:07:32] Speaker 01: That's what's subcritical. [00:07:34] Speaker 01: The next would be it combusts, and it could be smoldering. [00:07:36] Speaker 01: And then the next would be if and when the smoldering erupts into flames. [00:07:40] Speaker 01: And again, the question is, should the Secretary be able to read the definition of fire to include all of these activities or potentially encompass all of those by finding ambiguity in the phrase fire? [00:07:55] Speaker 05: But it seems like what they're saying is not subcritical heating, yes, smoldering and flames. [00:08:01] Speaker 05: And you're saying, no, not subcritical heating or smoldering, yes, flames. [00:08:06] Speaker 01: Well, I would say, again, where there's flames, there's always fire. [00:08:10] Speaker 01: Where there's smoke, there could be fire. [00:08:12] Speaker 01: And the point is, the unambiguous term [00:08:15] Speaker 01: fire as defined as the Supreme Court has said should be defined according to its plain, ordinary, contemporary meaning at the time of the passage of the MIND Act is flames or some other visible light emitted along with heat. [00:08:29] Speaker 01: And you don't need to even get to all these things encompassed. [00:08:32] Speaker 01: Congress didn't, they could have defined fire in the statute, and they didn't. [00:08:37] Speaker 01: They could have directed the Secretary to rule-make on the definition of fire, and they didn't. [00:08:41] Speaker 01: And for 30-plus years, this existed. [00:08:44] Speaker 01: The word fire existed over 20 times in the Mine Act, over 100 times in the Secretary's regulation, and was applied just fine. [00:08:51] Speaker 01: AMCOL is not asking for a change, for a change in the way things have been enforced. [00:08:57] Speaker 01: They're not asking to decrease miner safety and health. [00:09:00] Speaker 05: The secretary has some references in his brief to cases that predate the enactment of the Mine Act and the talk about smoldering as a form of fire. [00:09:15] Speaker 01: Well, in those cases, as I think we said in our briefing, all of those cases, actually the issue before the court in all of those instances was not whether smoldering was part of the definition of fire. [00:09:26] Speaker 01: And in fact, all of those cases dealt with flaming combustion at some point. [00:09:31] Speaker 01: So there was flames present. [00:09:33] Speaker 01: So they may have made an offhand remark about that, but that doesn't mean that the court actually addressed the question. [00:09:38] Speaker 01: The cases cited in our briefs, however, by contrast, did in fact deal with the issue of what is included in the term fire. [00:09:46] Speaker 01: And in that case, they were like flames, which makes a simple demarcation for the point of an accident. [00:09:51] Speaker 01: I mean, I think one of the most telling pieces of evidence is Inspector Crick's testimony. [00:09:56] Speaker 01: He believed that the hazard was a minor falling into a void or a fire, quote, is basically what the accident would have been. [00:10:07] Speaker 01: In other words, there was no fire and no accident occurring, but it could have. [00:10:13] Speaker 01: And that's inappropriate for Section 103K. [00:10:16] Speaker 01: It's more appropriate for an eminent danger order. [00:10:18] Speaker 05: Or he's using, he's conjugating his verbs a little bit incorrectly, as some people do, would have been meaning... [00:10:24] Speaker 05: I think this discussion was in the past, but I take your you're the ambiguity that you find. [00:10:31] Speaker 05: This is a conjecture. [00:10:32] Speaker 05: This is a free. [00:10:34] Speaker 05: I mean, one way that you're reading it is this is a pre accident. [00:10:37] Speaker 05: situation of potential risk, and we're trying to shoehorn it into accidents so that we can treat it and sustain the decision. [00:10:47] Speaker 01: Well, that may be true, but if you read his entire testimony, he uses the word could several times. [00:10:51] Speaker 01: I don't think he was bothered by what was happening. [00:10:53] Speaker 01: He was bothered by what could have. [00:10:55] Speaker 01: And there are more arrows in the secretary's enforcement quiver than just the most extreme Section 103K control order that they can use. [00:11:04] Speaker 04: I was just looking at Mr. Harden. [00:11:07] Speaker 04: It seems to me that one of the things that you said was that what was happening here was pre-combustion. [00:11:14] Speaker 04: That is to say that there was not combustion at this point. [00:11:19] Speaker 04: If there was combustion, smoldering might be the result, correct? [00:11:25] Speaker 01: That is possible. [00:11:26] Speaker 04: Okay, and so I assume that your argument is even if it was smoldering, it wouldn't be a fire. [00:11:34] Speaker 01: Well, yes. [00:11:36] Speaker 01: And that's an interesting question. [00:11:39] Speaker 01: Is the emission of light and heat, is that a fire? [00:11:43] Speaker 01: And I think that the most easiest definition, and that's been applied for 30 years, is that when there's flames, there's fire. [00:11:50] Speaker 01: And so could some types of events of smoldering be classified as a fire? [00:11:55] Speaker 01: Maybe, but I don't think that falls within the ordinary common meaning of the term fire. [00:11:59] Speaker 01: And I think it might, again, we're not foreclosing that in an accident, in certain circumstances underground, smoldering might be an accident. [00:12:08] Speaker 04: Well, one of the reasons that I ask that is that ultimately we're talking about safety of miners and we're talking about mine fires, right? [00:12:18] Speaker 04: And so if the definition of fire requires flame, [00:12:24] Speaker 04: And then with the definition of mine fire require flame because even you acknowledge It would be different underground and smoldering might be quite dangerous. [00:12:35] Speaker 01: That's right That's why I'm trying to understand I think the second the best the most interesting point of this is if you look at the secretary's own definition [00:12:44] Speaker 01: The secretary concedes that some smoldering combustion is a fire and some is not. [00:12:49] Speaker 01: Because their part is it's flaming combustion or smoldering combustion that has the reasonable potential to burst into flames. [00:12:55] Speaker 01: So the secretary himself has admitted that some smoldering is not a fire and some is. [00:12:59] Speaker 01: And the question is, where do you draw the line? [00:13:01] Speaker 04: Well, that's my question. [00:13:04] Speaker 04: Because if both of them could be, then why would we draw the line on the other side at flame [00:13:14] Speaker 04: because you couldn't have different definitions, right? [00:13:19] Speaker 01: Well, the reason that I think that you can do that and it makes sense is because the common meaning usually invokes flames, but the point I think I made talking to Judge Griffith earlier is that [00:13:29] Speaker 01: If you say that fire requires flames, you're not decreasing miner safety and health. [00:13:35] Speaker 01: We're not asking for that, and we're not arguing for that. [00:13:38] Speaker 01: Absolutely, the Mine Act is there to protect miners from fires. [00:13:42] Speaker 01: We're asking for it to be applied consistently as it has been for 30 years. [00:13:46] Speaker 01: And if there is a smoldering event, [00:13:48] Speaker 01: that poses or causes an accident, then that, given the circumstances, would fall under a similar event under Section 3K. [00:13:58] Speaker 01: I don't believe this court has ever addressed the issue, but I believe another circuit court addressed the issue of whether accident includes items other than those listed in Section 3K and found that it could include similar events of a similar nature. [00:14:11] Speaker 04: And I would... So your argument is that you [00:14:15] Speaker 04: Fire would always require flame, but somehow you could have an accident that [00:14:25] Speaker 04: involves something less than? [00:14:28] Speaker 01: That's true. [00:14:29] Speaker 01: In fact, I would even say that it's possible, not in this situation, but it's possible that in a situation we talked about with pre-combustion, where it's not even smoldering, but it's self-heating, if that was occurring underground in a confined space and emitting carbon dioxide and smoke, that could be an accident. [00:14:47] Speaker 01: It could harm someone. [00:14:47] Speaker 05: It's going to be contextual. [00:14:49] Speaker 05: There's some amount of contextual judgment here. [00:14:52] Speaker 01: There is, but here's the ultimate question is, can the word mine in front of fire and can the mandate of safety and health in the Mine Act create ambiguity in a term that has been plainly defined for hundreds of years? [00:15:06] Speaker 01: Where does it end? [00:15:06] Speaker 02: There must be. [00:15:10] Speaker 02: From my vantage point, you're overstating the clarity of the word fire. [00:15:13] Speaker 02: At least my thinking is your chevron one argument is weak. [00:15:18] Speaker 02: I think you have a better chevron two argument along the lines that you just made. [00:15:22] Speaker 02: It seems as if the commission has acknowledged that there's some types of smoldering fire that are not [00:15:30] Speaker 02: smoldering that is not a fire, it's only a type of smoldering that is reasonably probable to combust. [00:15:41] Speaker 01: I would say this, I don't [00:15:45] Speaker 01: I disagree with whether how we, but I would say this is that I believe that that raises a good point, and that was the point of Commissioner Young in dissent before the commission, that mine operators and inspectors need to be able to anticipate and predict when a nuisance or a violation might [00:16:04] Speaker 01: transition to a real danger, or has transitioned to a real danger. [00:16:08] Speaker 02: And the Secretary's interpretation here... Is the standard, in your view, not workable, reasonably probable to burst into flames? [00:16:17] Speaker 01: Absolutely not. [00:16:18] Speaker 01: Absolutely not. [00:16:19] Speaker 01: Why isn't that not workable? [00:16:20] Speaker 01: I think it will be applied as it was here on remand. [00:16:23] Speaker 01: Where there's smoke, there's fire. [00:16:25] Speaker 01: And everyone will cast aside the reasonable. [00:16:28] Speaker 02: Basically... And for a layperson, that doesn't sound bad, right? [00:16:32] Speaker 02: You look at those pictures and you see smoke and you think, you know, that's probably not a good, that probably poses some danger to miners. [00:16:43] Speaker 01: Am I wrong about that? [00:16:44] Speaker 01: And it may, but again the question, Your Honor, is was that an accident? [00:16:50] Speaker 01: What is an accident? [00:16:51] Speaker 01: What is a fire for the purpose of an accident? [00:16:53] Speaker 01: I mean, there was no one injured. [00:16:56] Speaker 01: There was no one nearby. [00:16:57] Speaker 01: There was no near miss. [00:16:58] Speaker 01: No equipment was damaged. [00:16:59] Speaker 01: No lost time occurred. [00:17:01] Speaker 01: I mean, it was on a surface stockpile where it was emitting smoke from the self-heating of coal that occurs every day, all across the surface of the mine, all across the nation. [00:17:11] Speaker 01: And so if you allow the Secretary's definition. [00:17:15] Speaker 02: So are you saying that it's the norm to have [00:17:19] Speaker 02: smoke rising from coal piles? [00:17:22] Speaker 01: It's not the norm, but it happens routinely and for 30 plus years the secretary didn't issue control orders. [00:17:29] Speaker 01: If in fact they thought there was a danger from that, they had another arrow in the quiver of a 107A imminent danger order that they could have issued. [00:17:35] Speaker 05: Isn't the 107A, that's a little bit curious to me, it's like the 107A is actually in some ways a stronger medicine or at least less nuanced. [00:17:44] Speaker 05: You have to shut things down and remove all the workers. [00:17:47] Speaker 05: Whereas with the accident, there's actually a lot more sort of remedial flexibility to respond in a case-specific way. [00:17:55] Speaker 05: So the accident here would be, if one were to accept the secretary's position, whoa, this is smoldering. [00:18:02] Speaker 05: It's not intentional. [00:18:04] Speaker 05: It's not a good thing. [00:18:05] Speaker 05: It's a problem that the coal pile is smoldering. [00:18:08] Speaker 05: This is a giant pile of fuel. [00:18:10] Speaker 05: Let's treat that as something that's gone wrong and respond to it. [00:18:15] Speaker 05: But we don't necessarily have to go all the way to 107A. [00:18:19] Speaker 01: Well, you don't, but you could if they protected that. [00:18:21] Speaker 01: But the question is, first, I don't think there was evidence showing that it was smoldering occurring. [00:18:25] Speaker 01: It could have been pre-combustion. [00:18:26] Speaker 01: I mean, there was no life and carbon monoxide detected. [00:18:29] Speaker 01: And so the question is, how do you prove smoldering? [00:18:32] Speaker 01: I mean, all of the technical treatises cited by the secretary, which came after the passage of the Line Act, they all require some kind of glowing or incandescence from the smoldering. [00:18:42] Speaker 05: So your view is that pre, what's it called? [00:18:46] Speaker 05: Pre-combustion. [00:18:47] Speaker 05: Pre-combustion, there can be smoke from pre-combustion. [00:18:49] Speaker 01: Absolutely, Your Honor. [00:18:50] Speaker 01: I think, in fact, it's in definitions of smoke will include, it says, can be from things that are pre-combustion. [00:18:57] Speaker 01: And that's a common meaning of smoke. [00:18:59] Speaker 01: And I think it's also in the technical treatises. [00:19:00] Speaker 05: Remind me where that is in your brief. [00:19:02] Speaker 01: It is in our, I'm not sure exact page, but it is in our brief. [00:19:08] Speaker 01: I think it's in the initial brief, probably under the substantial evidence section where we talk about what should be proven for smoldering combustion. [00:19:17] Speaker 05: And you did not put evidence in on that issue. [00:19:19] Speaker 01: No, we did. [00:19:20] Speaker 01: I mean, we cross-examined. [00:19:23] Speaker 01: We don't believe that the secretary met his prima facie case. [00:19:26] Speaker 01: We don't believe that they put in any evidence of any glowing or incandescence. [00:19:29] Speaker 01: They didn't take any heat measurements. [00:19:30] Speaker 01: They didn't detect any carbon monoxide. [00:19:32] Speaker 01: What more evidence is there to require? [00:19:34] Speaker 05: Well, again, we're in a... [00:19:35] Speaker 05: in a deferential posture. [00:19:37] Speaker 05: And remember, the only carbon monoxide detector was 60, 70 feet away. [00:19:42] Speaker 05: And how, I mean, often when there's smoldering, it would be under, I mean, you know, you hear about these peat fires that go on for years. [00:19:49] Speaker 05: If you opened it up, you might see light [00:19:54] Speaker 05: But who wants to require that inspectors go on the pile, dig it out, add oxygen to that situation? [00:20:00] Speaker 01: Well, it's interesting. [00:20:01] Speaker 01: That's exactly how this was dealt with was they dug it out the next day and they spread it out. [00:20:06] Speaker 01: So that's exactly what they do is they generally just spread it out and then it goes out. [00:20:10] Speaker 05: Firefighting preparation as opposed to an inspector coming in and doing that as part of the... [00:20:14] Speaker 01: Well, they do that on a daily basis. [00:20:15] Speaker 01: They're monitoring their stockpile every day. [00:20:16] Speaker 01: And when they see smoke come up, they go out and they spread it out. [00:20:18] Speaker 01: I mean, this happens all over. [00:20:19] Speaker 01: This happens at utilities. [00:20:21] Speaker 01: It happens at coal mines. [00:20:22] Speaker 01: It happens at stockpiles along a train rail. [00:20:25] Speaker 01: I mean, this happens every day. [00:20:26] Speaker 01: And what the secretary, if you find ambiguity in the term, or if you endorse the secretary's [00:20:33] Speaker 01: interpretation, you could have a situation where emission inspectors could come on to any of these sites and say, 103K order in control. [00:20:40] Speaker 01: And here what that means was they had to hire new people, get new equipment, they had to reduce the pile size, and the order stayed in place for six months. [00:20:50] Speaker 01: six months until the judge vacated it. [00:20:52] Speaker 04: To follow up on that, because I'm not sure that I understand. [00:20:57] Speaker 04: In your view, is the 103K order, does that give the Secretary more authority than the 107? [00:21:05] Speaker 04: or are they just different? [00:21:07] Speaker 01: There are different, but what it does is, and that's a great question, and the 107A is that there's an imminent danger, which means that the conditions could reasonably be expected to cause death or serious bodily harm before the condition can be abated. [00:21:20] Speaker 01: So they issue it, they can withdraw everyone from the site, and at that point, the order's in place, but when the danger has passed, the order is removed. [00:21:29] Speaker 01: Section 103K stays in place until the Secretary decides to lift it, or there's been an abuse of the Secretary's discretion. [00:21:36] Speaker 01: And again, here, that stayed in place six months. [00:21:38] Speaker 01: Had it been an imminent danger order that day, it probably would have been lifted the next day, or maybe a day after that, or maybe even that later that day. [00:21:45] Speaker 01: I don't believe the conditions warranted an imminent danger order. [00:21:48] Speaker 01: But if they had, that's what would have happened. [00:21:50] Speaker 01: They would have spread the pile out, removed everybody, and it would have been lifted sooner. [00:21:56] Speaker 01: Just one last point, and I want to finish responding to your question, Judge Griffith, about Chevron Step 2, is that I think there's an argument. [00:22:04] Speaker 01: The Secretary's interpretation could be construed as less safety promoting. [00:22:08] Speaker 01: I'm sorry? [00:22:09] Speaker 01: As less safety promoting. [00:22:11] Speaker 01: I think it's really ambiguous and difficult to apply, but as we discussed earlier with Judge Brown, [00:22:16] Speaker 01: Where do you draw the line? [00:22:18] Speaker 01: The Secretary has admitted that some of the events covered of smoldering are not fire, and some are. [00:22:24] Speaker 01: The question is, where is the line? [00:22:26] Speaker 01: I mean, and the Secretary has drawn this vague... Well, we use reasonableness inquiries throughout the law. [00:22:33] Speaker 02: That can't be the problem, right? [00:22:34] Speaker 01: That's true, but I think Commissioner Young hit the nail on the head in his dissent and the Commission decision when he talked about the real world application of this definition. [00:22:43] Speaker 01: It's just going to be applied that where there's smoke, there's fire, or it's going to be ignored in process. [00:22:47] Speaker 01: I mean, he goes into great detail on that in his dissent. [00:22:52] Speaker 01: Thank you. [00:22:52] Speaker 01: If there's no further questions, I'll see. [00:22:54] Speaker 04: Thank you, Mr. Harden. [00:23:06] Speaker 00: On behalf of the Secretary of Labor, I'm Jerry Feingold, and with me at Council table is Christian Schuman, also of the Solicitor's Office. [00:23:17] Speaker 00: May it please the Court, the questions before the Court today are twofold. [00:23:22] Speaker 00: First, whether or not the word fire, as used in Section 3K of the Mein Act, is ambiguous as it applies to an accident under Section 103K of the Mein Act, in the sense that visible flame is either required or is not required for there to be a fire. [00:23:41] Speaker 00: Second, if the word fire is ambiguous, is the Secretary's interpretation a reasonable and safety promoting interpretation that was properly given deference by the Commission and should likewise be given deference by this Court? [00:23:56] Speaker 00: We would ask that the Court bear in mind throughout our discussion today that the MIND Act is a remedial safety and health statute that is directed to prevent [00:24:06] Speaker 00: things going wrong before they go wrong and not to address them after the fact. [00:24:12] Speaker 02: Well, but it has to be an accident, right? [00:24:14] Speaker 02: It has to be an accident occurring. [00:24:16] Speaker 00: That's correct. [00:24:17] Speaker 02: So, accident occurring, that sounds like it's not before the fact, right? [00:24:24] Speaker 00: It's to address the fire before that fire can create an injury. [00:24:28] Speaker 02: Before it gets worse. [00:24:30] Speaker 02: Exactly. [00:24:31] Speaker 02: But an accident has to have started. [00:24:33] Speaker 00: Pardon me? [00:24:33] Speaker 02: An accident has to be in the process of happening. [00:24:37] Speaker 02: That is correct. [00:24:37] Speaker 02: That is correct. [00:24:39] Speaker 00: Your Honors, we know that the word fire was ambiguous with regard to whether flame was required when the Mine Act was enacted for several reasons. [00:24:48] Speaker 00: First, as you noted, Judge Griffith, Congress placed the modifier, the adjective, mine, in front of the word fire in Section 3K in defining accident. [00:25:01] Speaker 00: That is a very important point. [00:25:03] Speaker 00: There was no point in this litigation that anyone questioned whether we were talking about general fires or mine fires. [00:25:11] Speaker 00: It was mine fires from day one. [00:25:13] Speaker 02: And a mine fire does not need to be underground, right? [00:25:16] Speaker 02: That is correct. [00:25:16] Speaker 02: No one disputes that. [00:25:18] Speaker 00: It can be either a coal mine or a non-coal mine. [00:25:20] Speaker 00: It can be a surface mine or an underground mine. [00:25:23] Speaker 00: That is correct. [00:25:25] Speaker 00: But that adjective is very important because just like certain concerns attend forest fires that are unique to forest fires and circumstantial to forest fires, similarly mine fires have circumstances that attend to them that are special because they are mine fires. [00:25:46] Speaker 00: so it was not being used in the general sense. [00:25:49] Speaker 00: We also know that the word fire was ambiguous as to whether flame was required, because when Congress enacted the Mine Act and thereby extended the protections of the Old Coal Act, which only applied to coal mines, to all mines in 1977, [00:26:06] Speaker 00: the legislative history at that time, very specifically referenced the recent deaths of 91 mines. [00:26:13] Speaker 02: Could you address my Chevron Step 2 question? [00:26:16] Speaker 02: If we agreed with you that – if I agreed with you that the statute is at least ambiguous as to the meaning of mine fire, I have some concerns about the way the Secretary has come up with the reasonable interpretation. [00:26:32] Speaker 02: How can the Secretary distinguish between [00:26:34] Speaker 02: smoldering that probably leads to combustion, to ignition, and smoldering that does not. [00:26:44] Speaker 00: Well, it's smoldering with reasonable potential. [00:26:46] Speaker 02: I'm sorry, reasonable potential. [00:26:48] Speaker 02: So the Secretary's interpretation is that smoldering itself is insufficient. [00:26:54] Speaker 02: It has to be a certain type of smoldering. [00:26:57] Speaker 02: before we will issue an order. [00:26:59] Speaker 02: That's right. [00:27:00] Speaker 00: And this does not work. [00:27:01] Speaker 02: So how do you distinguish that? [00:27:03] Speaker 02: How is a mine operator supposed to know that that smoldering that will probably lead to combustion and that smoldering that's not? [00:27:15] Speaker 02: I'm very much a lay person here, so how is the mine operator supposed to know that? [00:27:21] Speaker 00: My managers are supposed to be very well versed in the running of their minds. [00:27:28] Speaker 00: And if you have coal piles, you understand that fire is a hazard on a coal pile. [00:27:32] Speaker 00: Similarly, if you run an underground mine, you certainly realize that fire is one of the hazards you have to address. [00:27:37] Speaker 00: But each situation has to be addressed on its own particular circumstances. [00:27:43] Speaker 00: And as you, Judge Griffith, noted, [00:27:45] Speaker 00: The reasonable man standard is not only ubiquitous throughout administrative law, it's certainly ubiquitous throughout my act enforcement. [00:27:55] Speaker 00: For instance, we have the reasonable man standard applied to numerous violations. [00:28:02] Speaker 02: Let me ask you, what type of smoldering would not [00:28:07] Speaker 02: reasonably lead to probably lead to combustion. [00:28:10] Speaker 00: I can give you an example if you buy. [00:28:12] Speaker 00: It's probably extreme but I don't want to limit it to that but an example perhaps might be if you have a wet parking lot at a mine site and a small pile of coal in that parking lot and some smoke is coming off that little pile but well reasoned judgment would be that it would in effect extinguish itself [00:28:33] Speaker 00: It's a very calm day. [00:28:34] Speaker 00: There's no wind. [00:28:36] Speaker 00: It would probably end up extinguishing itself before it would ever ignite into flame. [00:28:41] Speaker 00: And that would be a reasoned judgment. [00:28:43] Speaker 00: The reason we did that is because mine inspectors and mine examiners, those that work for the mine operators, [00:28:51] Speaker 00: have more important things to do than to worry about these relatively rare, very minor incidents where smoke is coming, but it's fairly clear it's not going to develop into anything that has. [00:29:03] Speaker 02: So the sense that I get from you is that the typical case in which they'll be smoldering on a pile is fire? [00:29:10] Speaker 00: In most instances, that is correct. [00:29:14] Speaker 00: And let me say this. [00:29:15] Speaker 00: If an operator, whether American or any other, in good faith, feels that they are somehow at risk because they do not have the ability to exercise this type of judgment, the answer is very simple. [00:29:28] Speaker 00: Just attend to all smoldering fires. [00:29:30] Speaker 04: So, in effect, it's exactly as Mr. Harden has described it. [00:29:35] Speaker 04: The new line will be where there's smoke, there's fire. [00:29:37] Speaker 00: That's not true. [00:29:38] Speaker 00: I'm just saying if they feel [00:29:40] Speaker 00: that they don't have the ability to make a reasoned judgment. [00:29:44] Speaker 00: And remember, if they disagree with an inspector, they can do what they did here. [00:29:48] Speaker 00: They can take it before an administrative law judge, put on the facts, and if they're correct, the K order will be hushed. [00:29:56] Speaker 04: Well, here they did that, and then they still didn't win that argument. [00:30:01] Speaker 00: In the end, that's correct, because in this particular instance, they were incorrect based on the evidence. [00:30:07] Speaker 05: Is it, are you in agreement that subcritical heating also produces smoke? [00:30:13] Speaker 00: I don't, I'm not an expert. [00:30:15] Speaker 00: I would certainly concede that's a possibility, yes. [00:30:17] Speaker 00: Okay. [00:30:17] Speaker 05: And I wonder about, I mean, I know this is not on the record, nor is the fact that, you know, this pile burst into flame after the events in the case, but Mr. Arden does say that, you know, this happens every day. [00:30:27] Speaker 05: This is all, like, all the time. [00:30:30] Speaker 05: You have the smoking and [00:30:31] Speaker 05: They're calming out their piles, and they had to hire all these new people. [00:30:35] Speaker 05: Is this really this quotidian kind of event or something? [00:30:41] Speaker 05: And or maybe it is. [00:30:42] Speaker 05: I know mines are dangerous places. [00:30:44] Speaker 05: Is this something where really the alarm bells go off, people are addressing it very promptly? [00:30:49] Speaker 00: It may happen in different places throughout the country every day. [00:30:52] Speaker 00: I don't know whether it does or not. [00:30:53] Speaker 00: But keep in mind, the only time a K-order is issued is when the inspector sees it. [00:30:57] Speaker 00: And the inspector is not there very often. [00:31:00] Speaker 00: We leave it to the operators to take care of these problems. [00:31:04] Speaker 00: That's the whole point of the citation that went with this K order for failure to report it under Part 50 and the K order itself is to address something that the operator had not addressed themselves. [00:31:17] Speaker 00: Had they attended to this, [00:31:19] Speaker 00: and put out the smoking, the smoldering fire that Inspector Crick described in detail with the strong smell of sulfur, a burning coal. [00:31:30] Speaker 00: If they had attended to this, they wouldn't have received a cash order. [00:31:35] Speaker 05: Explain to me a little bit more. [00:31:36] Speaker 05: What does it mean that an order is in place for six months? [00:31:38] Speaker 05: What's happening over that six months? [00:31:40] Speaker 00: That's another important point. [00:31:41] Speaker 00: I'm glad you raised that, Judge Pillard. [00:31:43] Speaker 00: A K order is frequently modified, sometimes on a daily basis, the conditions. [00:31:49] Speaker 00: It may have been in effect for six months, but I don't know the details, but I'm guessing that it was not in effect a closure order, not allowing them to work on that coal pile for six months. [00:32:03] Speaker 00: And I do believe, even though it's not in the record, that there was a post-history after this event on that cold pile, which is not relevant to deciding this case, but may be relevant to answering your question, because the K-order may have remained in effect because of other things going on in that cold pile after this incident. [00:32:24] Speaker 05: So it isn't necessarily closure at some kind of supervisory level? [00:32:28] Speaker 00: It can be closure, and then it can be modified to something else. [00:32:31] Speaker 00: We're going to allow you now to open it. [00:32:33] Speaker 00: And you, Judge Bill, made reference to that fact that unlike an imminent danger order, and this was not an imminent danger, and should not have gotten an imminent danger, but unlike an imminent danger order, a K order is very flexible. [00:32:44] Speaker 00: It gives the secretary, through his inspectors, the right to tailor [00:32:51] Speaker 00: the remedy and then to change it as he sees fit. [00:32:54] Speaker 05: And the kinds of like, what would be like a low level kind of remedy that might? [00:32:59] Speaker 00: Well, the K-Order stays in effect and they tell them, I want you out there every morning at nine o'clock surveying for smoke. [00:33:05] Speaker 00: And if you see any, to direct hoses or to, you know, put, use a rake, whatever method they want to use to alleviate that problem. [00:33:13] Speaker 00: But he can design what he wants. [00:33:15] Speaker 00: In effect, the secretary is taking control for the protection of human life. [00:33:19] Speaker 05: And do they do that kind of thing? [00:33:21] Speaker 00: Absolutely. [00:33:22] Speaker 05: Sort of low-level supervisory presence? [00:33:25] Speaker 00: Absolutely. [00:33:26] Speaker 00: They modify K orders all the time. [00:33:28] Speaker 00: So I don't know the particular details in this instance. [00:33:32] Speaker 02: Can you help me understand the statute here? [00:33:35] Speaker 02: I know the Secretary has chosen to argue this in terms of this is a mine fire. [00:33:41] Speaker 02: I would have thought a better ground would be to argue that it's an accident, and obviously the secretary chose not to do that. [00:33:48] Speaker 02: Maybe I'm missing something about the statute. [00:33:50] Speaker 00: You know, it's a very interesting theory, and I looked at the Section 3K definition of accident, and it says includes, so you're absolutely correct, Judge Perkins. [00:34:00] Speaker 02: That would be a far more expansive [00:34:02] Speaker 00: And we'd be here arguing in great detail that this unique theory of accident, which is not one of the specified things such as fire, should not now be adopted as a type of an accident. [00:34:16] Speaker 00: The truth is we didn't feel we needed to go that route because we had one that applied, namely a mine fire. [00:34:24] Speaker 05: And what about ignition? [00:34:26] Speaker 05: How do you understand that? [00:34:28] Speaker 00: You mean the process that you're asking the council? [00:34:29] Speaker 05: No, isn't that one of the things in the accident definition? [00:34:33] Speaker 00: Oh, you mean the ignition? [00:34:35] Speaker 05: Yeah. [00:34:36] Speaker 00: You know, when you're mining at the face, the face gives off... It's more sparks. [00:34:41] Speaker 00: You're talking more about sparks. [00:34:41] Speaker 00: Exactly. [00:34:42] Speaker 00: And the face gives off a lot of methane gas, and those sparks create pops. [00:34:47] Speaker 00: Sometimes it's more than a little pop, and that's considered an ignition. [00:34:50] Speaker 00: And that can cause a fire if you're not ventilating properly and keeping rock... This is underground, mind you. [00:34:56] Speaker 05: And here, I know the definition of mine is quite broad, but whatever definition applies here would also be the definition that would apply underground. [00:35:08] Speaker 00: That is correct. [00:35:09] Speaker 05: So in some sense this is really great facts for AMCOL because [00:35:15] Speaker 05: This is a more benign situation in which smoldering might occur. [00:35:18] Speaker 05: There are other situations. [00:35:20] Speaker 00: And keep in mind, Judge Pillard, that a coal mine, and especially an underground mine, is a containment of fuel. [00:35:28] Speaker 00: That is what coal is mined for, no other reason than to burn. [00:35:32] Speaker 00: It's extremely flammable. [00:35:34] Speaker 00: It's extremely dangerous. [00:35:36] Speaker 00: And these men and women that work in those underground coal mines every day do things that most of us would not be willing to do. [00:35:42] Speaker 00: Their families don't know if they're coming home each night. [00:35:45] Speaker 00: We have an obligation to make sure that they're as safe as possible. [00:35:51] Speaker 00: My time's up. [00:35:52] Speaker 00: I can talk more if you'd like, or I can sit down. [00:35:56] Speaker 04: Thank you. [00:35:58] Speaker 04: Thank you. [00:35:58] Speaker 02: Don't take that personally. [00:36:06] Speaker 04: All right, Mr. Hardin, we used up all of your time, so we'll give you two minutes. [00:36:11] Speaker 01: Okay, thank you very much. [00:36:12] Speaker 01: I just have a couple of quick points in rebuttal to the statements by Mr. Feingold. [00:36:17] Speaker 01: First, I'd like to start where he ended off about the circumstances here being a good pattern for AMCO. [00:36:24] Speaker 01: I would say that they pose an interesting question, and that is that there was gradual self-heating of coal [00:36:30] Speaker 01: over an extended period of time versus what you traditionally think of as a sudden event that's an accident. [00:36:38] Speaker 01: And the question is, is the rulemaking by adjudication process that is ongoing here, is it the thoughtful process that should be applied for such a far-reaching issue? [00:36:52] Speaker 01: As Commissioner Young mentioned in dissent, and this is the Chevron step two question, [00:36:59] Speaker 01: We still don't know. [00:37:01] Speaker 01: The Secretary has never said or produced any material about where the definition came from, what it means, or how it will or should be applied. [00:37:12] Speaker 02: This has been the Secretary's position since at least Velvetev's dodge to Tyrone, hasn't it? [00:37:18] Speaker 01: In that case, Your Honor, it didn't relate to Section 103K. [00:37:24] Speaker 01: It related to a Part 50 regulation. [00:37:26] Speaker 01: It was an interpretation of fire in that case. [00:37:28] Speaker 01: But the question is, how has it been applied in the field and has it been applicable to Section 103K? [00:37:35] Speaker 01: And I would say that, again, [00:37:37] Speaker 01: We know of no instances, and the Secretary hasn't claimed any, over 30 years of enforcement of the MIND Act where pre-combustion smoking or smoldering on a stockpile, a Section 103K order was issued. [00:37:49] Speaker 05: And on the point... Let me ask you, Mr. Harden, about your substantial evidence position. [00:37:53] Speaker 05: I think that you said in your argument in chief that [00:37:57] Speaker 05: Your response to the evidence that the Secretary put forth was basically that they haven't made their prima facie case. [00:38:05] Speaker 05: That's correct. [00:38:06] Speaker 05: So the notion that there's not substantial evidence is if we look at everything that Mr. Crick testified, everything that was in the record and that the ALJ relied on, just as a matter of lots, just not enough. [00:38:18] Speaker 01: Well, that's correct, because all the evidence that exists are the pictures, which you've looked at, and Inspector Crick's opinion that it could burst into flame at any moment. [00:38:26] Speaker 01: Again, inspectors, they have access to heat guns and forward-looking infrared cameras to take temperature readings. [00:38:33] Speaker 01: That wasn't done. [00:38:34] Speaker 01: No carbon monoxide was detected, no flames, no illumination. [00:38:38] Speaker 01: It's undisputed. [00:38:38] Speaker 01: None of those things were seen. [00:38:40] Speaker 01: If we allow that to be substantial evidence, then again, it will simply be whether smoke, there is fire, is all that really required, and that that's the way it will be applied by administrative law judges as well as inspectors. [00:38:52] Speaker 01: And my last point would be on the, you were talking about, is the 103K a closure order, Judge Pillard? [00:38:57] Speaker 01: And the statute calls it, it's a control order. [00:39:01] Speaker 01: And no activities can occur without MSHA's pre-approval. [00:39:05] Speaker 01: That's what section 103K allows, and how is it applied in the field. [00:39:10] Speaker 01: And finally, I think this goes to Judge Griffith, one of the questions you were asking, Mr. Feingold. [00:39:18] Speaker 01: There are other remedies available under the MINE Act other than a 107A and a danger order and a 103K control order for pre-accident conditions, something that doesn't quite rise to the level of an accident. [00:39:30] Speaker 01: I mean, the MINE Act is very detailed on this. [00:39:32] Speaker 01: There are hundreds of mandatory safety and health standards where the [00:39:37] Speaker 01: where IMSA and its inspectors can issue 104A citations. [00:39:40] Speaker 01: If a mine operator fails to abate those conditions, they can issue a 104B withdrawal order. [00:39:46] Speaker 01: Again, these are all pre-accident, pre-eminent danger. [00:39:49] Speaker 01: There can be a section 104D, unwarrantable failure citation and order, given the right circumstances for more egregious conduct or more serious conditions. [00:39:58] Speaker 01: And they also, IMSA inspectors can come and provide training and guidance as well. [00:40:03] Speaker 01: So there are a number of options available. [00:40:05] Speaker 01: Thank you, if there's no further questions. [00:40:06] Speaker 04: Thank you, Mr. Harden. [00:40:07] Speaker 04: Thank you, Council. [00:40:08] Speaker 04: The case will be submitted.