[00:00:00] Speaker 01: Good morning. [00:00:12] Speaker 01: Miss Maltz will hear from you. [00:00:30] Speaker 02: have me confused because you're sitting where the respondents usually sit. [00:00:36] Speaker 02: Oh, I apologize. [00:00:38] Speaker 02: That's what you normally are. [00:00:41] Speaker 02: Yes, of course. [00:00:43] Speaker 02: At any rate, good morning. [00:00:45] Speaker 01: Good morning. [00:00:45] Speaker 01: May it please the court? [00:00:46] Speaker 01: I'm Susanna Maltz, the secretary of labor, petitioner, secretary of labor. [00:00:50] Speaker 01: I'd like to reserve two minutes for a bottle, please. [00:00:52] Speaker 05: Can you please move the microphone a little closer? [00:00:53] Speaker 05: Sure. [00:00:54] Speaker 05: Thank you. [00:00:54] Speaker 05: How's that? [00:00:55] Speaker 05: It's great. [00:00:56] Speaker 01: Very good. [00:00:57] Speaker 01: This case is simple. [00:00:59] Speaker 01: The Mine Act gives Emsha enforcement authority over mines. [00:01:02] Speaker 01: Section 3H1C of the Act defines mines as including equipment and facilities used in mining. [00:01:09] Speaker 01: The subsection is clear that equipment and facilities used in mining are mines due to their function, their use in mining, and it does not require them to be located anywhere in particular to be considered mines under the Act. [00:01:21] Speaker 01: A reading of this court's decisions in Donovan versus Carolinas Daylight and Secretary of Labor versus National Cement Company of California conveys this as well. [00:01:32] Speaker 01: In Carolinas Daylight, this court determined that the act does not require subsection C facilities to be located on property where extraction occurs. [00:01:40] Speaker 01: And in National Cement, this court determined that subsection C reaches vehicles used in mining but not located on a subsection A extraction area. [00:01:49] Speaker 02: But how do we deal with the fact that, and I think it's section 103, or how do we deal with the fact that inspections are required to occur [00:02:14] Speaker 02: I guess twice a year, according to 813A, [00:02:22] Speaker 02: of each surface coal or other mine in its entirety. [00:02:26] Speaker 01: EMCHA is required to inspect surface coal mines two times a year, and to the extent that these equipment and facilities, et cetera, are considered mines under the Act, EMCHA will inspect them. [00:02:36] Speaker 01: That's EMCHA's role. [00:02:38] Speaker 01: KC Transport has suggested that this will explode, this burden will weigh on the agency, but it's not a burden for EMCHA to enforce the Mine Act. [00:02:50] Speaker 02: What I guess I'm getting at is in order to inspect something, you have to know where to find it, and especially if it's a mandatory requirement that an inspection occur a certain number of times per year. [00:03:06] Speaker 02: And so it seems that in that sense, it would kind of be congruent with Congress's intent that there be some sort of [00:03:20] Speaker 02: location aspect to Part C of 803. [00:03:29] Speaker 02: I disagree that Congress... I'm sorry, 802H3. [00:03:36] Speaker 01: Yes. [00:03:36] Speaker 01: Congress didn't require a locational element, although I do understand the congressional requirement that might be inspected. [00:03:48] Speaker 01: These circumstances play out the way that they did here. [00:03:51] Speaker 01: An inspector was present at an extraction site. [00:03:53] Speaker 01: He traveled to KC Transport's maintenance facility and observed violations of the Mine Act standards. [00:04:02] Speaker 01: This is how subsection C applies. [00:04:05] Speaker 01: This is how Emsha inspectors would and will and do enforce the Mine Act where equipment and facilities aren't located on the extraction site. [00:04:17] Speaker 02: I guess what I'm saying is, is that I don't know that you necessarily lose because there's a location aspect to this part subsection C, but, um, you know, sit in poker. [00:04:34] Speaker 02: I'm just going to tell you what I'm thinking right now. [00:04:36] Speaker 02: And you tell me your reaction to it. [00:04:41] Speaker 02: So it appears from, [00:04:44] Speaker 02: our decisions and I think Donovan and National Cement that one way that you could look at this is that in H1, A has been interpreted to mean the land and everything that's on the land. [00:05:08] Speaker 02: B, the private ways and roads pertinent to such area [00:05:13] Speaker 02: We expressed some concern that if that meant private roadways and roads of pertinent and everything on that area, that that could be too broad because roads could be used for non-mining activities. [00:05:30] Speaker 02: And so as a result, the secretary, we sent it back, and the secretary said, well, the road itself, as long as it's kind of principally used for mining activity, [00:05:42] Speaker 02: can fall within the definition of a mine and to the extent that there is equipment on the road that's used for mining activity like a truck, then that is also a mine. [00:05:56] Speaker 02: The commission seemed to say that geographically, [00:06:01] Speaker 02: a mine can't go beyond either of those two places, places defined in A or B, in that C cannot geographically expand the jurisdiction of the Mine Act, and mines can't be beyond any place that would fit within A and B. To me, that seems wrong, because it goes against, you know, [00:06:30] Speaker 02: Basically, C wouldn't do much work at all if that were correct. [00:06:42] Speaker 02: But that doesn't mean that any truck found anywhere that is coming from a mine or on its way to a mine is a mine. [00:06:58] Speaker 02: the equipment, machines, tools, or other property that's being referred to in C has to be located on or a part of the rest of the things that are in that subsection C, lands, excavations, underground passageways, retention dams, tailing ponds, et cetera. [00:07:24] Speaker 02: What's wrong with that? [00:07:26] Speaker 01: Well, let me see whether this answers the question. [00:07:30] Speaker 00: I agree that the commission's decision is wrong. [00:07:32] Speaker 01: Subsection C items need not be located on a Subsection A mine or a Subsection B road in order for the mine to reach them. [00:07:45] Speaker 01: So whether or not a truck is coming or going from a mine wouldn't necessarily [00:07:51] Speaker 01: you know, wouldn't, the act wouldn't necessarily cover that truck, the analysis of whether or not that truck is used in mining. [00:07:57] Speaker 01: That seems rather broad, but that is what the statute says. [00:08:01] Speaker 01: Have I, is that, may have not answered the entire question. [00:08:06] Speaker 02: Well, I guess all I'm saying is that this is a somewhat oddly written statute, and one thing I haven't been able to chase down yet is that I noticed that [00:08:19] Speaker 02: The legislative history says that this language from subsection C may have been taken from the Federal Metal and Non-Metallic Mine Safety Act because the Senate report says that the definition of mine was enlarged to include the mines that were previously covered by that act. [00:08:46] Speaker 02: And so it appears to me that that language from subsection C may have come at least in whole or in part from that prior statute. [00:08:58] Speaker 02: Do you know anything about that? [00:08:59] Speaker 01: Yes, the Mine Act, the Coal Act originally applied only to coal mines. [00:09:03] Speaker 01: The Mine Act expanded the coverage of coal. [00:09:07] Speaker 01: that statute to reach coal mines and other mines. [00:09:12] Speaker 01: So the language in subsection C, you know, there's an, or I don't want to say analogous language, but there's some language that is similar to subsection C in the coal act and there's some language that's similar to subsection C in other acts that previously regulated other mines in the industry. [00:09:32] Speaker 01: To the extent that your question started getting at, did Congress intentionally leave a locational element out of subsection C? [00:09:40] Speaker 01: Yes. [00:09:42] Speaker 01: Did Congress give empty jurisdiction over all these items, including items that were relevant in these other statutes? [00:09:54] Speaker 01: Did Congress give empty jurisdiction over those and not require them to be located on lands in A or roads in B? [00:10:01] Speaker 01: Yes. [00:10:02] Speaker 00: I think this might go to Judge Wilkins' question. [00:10:09] Speaker 00: I think we said in National Cement 2 that subsection C reaches vehicles used in mining but not located within an extraction area. [00:10:18] Speaker 00: And I think the question is, are there any limits to this? [00:10:22] Speaker 00: The hypothetical of a mining truck parked in a diner parking lot, things of that nature. [00:10:29] Speaker 00: Is it your position that subsection C would apply to such a truck parked in a diner parking lot? [00:10:36] Speaker 00: Or a tool in a miner's house? [00:10:41] Speaker 01: The answer is no. [00:10:42] Speaker 01: Well, the answer is it depends. [00:10:45] Speaker 01: The subsection C reaches, I apologize, I see I'm over time. [00:10:49] Speaker 01: I'll just quickly answer your- You can continue. [00:10:51] Speaker 01: Thank you. [00:10:55] Speaker 01: The act, so whether or not something is used in mining is a factual analysis. [00:10:59] Speaker 01: If something were, after an analysis of the facts, determined to be used in mining, [00:11:05] Speaker 01: There is a limiting principle in the statute and it's the use in mining test. [00:11:12] Speaker 01: There's not a locational, you know, the statute doesn't require any particular location, but trucks in diner parking lots [00:11:19] Speaker 01: you know, would not strike outside the bounds of reasonable enforcement. [00:11:25] Speaker 00: Is there a temporal limit on that? [00:11:27] Speaker 00: Like, is there a temporal limit on that? [00:11:29] Speaker 00: What if it was used in mining 30 years ago? [00:11:32] Speaker 01: I'm sorry. [00:11:34] Speaker 01: Yes, I think that [00:11:36] Speaker 01: type of fact would go into the analysis as to whether or not it's used in mining, and it would be considered amongst those other facts. [00:11:43] Speaker 01: Something doesn't remain used in mining for years and years, I think, if that's what the question is getting at. [00:11:50] Speaker 01: There's not a permanence. [00:11:54] Speaker 01: to use in mind. [00:11:56] Speaker 00: So your position would be that the truck used to transport coal that's parked in a diner parking lot could be inspected in the diner parking lot. [00:12:06] Speaker 01: I'm sure would not insect a truck in a diner parking lot, but it could be. [00:12:10] Speaker 01: But the statute, if the truck is used in mining, the statute would cover it. [00:12:17] Speaker 05: On Judge Pan's question about a time limit, the statute says [00:12:22] Speaker 05: quote, to be used in extracting, milling, et cetera. [00:12:27] Speaker 05: So if the truck had not been used for 30 years and was going, quote, to be used in five years, is the truck a mine? [00:12:39] Speaker 01: I think that I would need additional facts, but. [00:12:44] Speaker 05: It could be a mine? [00:12:47] Speaker 01: If the truck is to be used in based on the universal facts about the truck, then yes, the statute covers it. [00:12:55] Speaker 01: But, you know, only knowing, sorry? [00:12:58] Speaker 05: That's a broad reading of the statute? [00:12:59] Speaker 01: Yes, yes. [00:13:00] Speaker 01: And Congress intended the reading to be broad. [00:13:02] Speaker 01: Congress, in fact, intended the reading to be as broad as possible. [00:13:06] Speaker 05: So I think I know the answer to this hypothetical based on your answer to the last one, but let me, it's a hypothetical I've had in my head. [00:13:12] Speaker 05: It's probably more realistic than the truck my hypothetical. [00:13:15] Speaker 05: I just gave you where the truck is going to be used, but it's only Okay, so I Drive a truck the truck has no commercial purpose other than to be used for mining And I drove it on Monday at the mine [00:13:34] Speaker 05: And it's the holiday season, so I drive it across the country to visit my family in California. [00:13:42] Speaker 05: I drive it from, where was this mine? [00:13:46] Speaker 05: In this case, I forget. [00:13:47] Speaker 01: I'm sorry, southern West Virginia? [00:13:48] Speaker 01: West Virginia. [00:13:49] Speaker 05: Driving from West Virginia to California. [00:13:52] Speaker 05: That takes, you know, a few days, a week, whatever. [00:13:55] Speaker 05: I'm gonna drive it back. [00:13:57] Speaker 05: It'll take me about a week to drive it back. [00:14:00] Speaker 05: While I'm in California and it's parked at my [00:14:03] Speaker 05: mother-in-law's driveway. [00:14:06] Speaker 05: Is this truck a mine? [00:14:08] Speaker 01: Judge Walker, I don't mean to disappoint you, but it's very factually intensive. [00:14:14] Speaker 01: I don't mean, you know, I understand the court's interest in testing the boundaries of this using hypotheticals, but you know, if the truck after a robust factual analysis is found to be too, or I'm sorry, [00:14:28] Speaker 01: is determined to be used in mining, then the statute would cover it. [00:14:35] Speaker 05: I think that's more of an answer than you told me you were going to give me, because I think your answer is it could be a mine. [00:14:41] Speaker 01: Yes. [00:14:41] Speaker 01: But, you know, if you would like to challenge the exercise of jurisdiction over it, the courts, you know, you could raise that challenge, or just outlier fringe. [00:14:51] Speaker 05: And so just if the truck has been used and will be used, [00:14:58] Speaker 05: You have no geographic limit. [00:15:05] Speaker 05: Yes. [00:15:06] Speaker 05: And then one last, I guess it's not really even hypothetical, but presumably there was a mechanic who was working on the trucks in this case, either at the time of inspection or shortly before. [00:15:16] Speaker ?: Yes. [00:15:18] Speaker 05: Section G defines a minor as minor means any individual working in a coal or other mine. [00:15:25] Speaker 05: And of course, then Section H defines coal or other mine. [00:15:30] Speaker 05: So in this case, the mechanic who worked on these trucks, was that mechanic a minor? [00:15:36] Speaker 01: Yes. [00:15:36] Speaker 01: Yes, and that analysis would also have to do with whether or not that person worked for KC Transport. [00:15:43] Speaker 01: There might be other facts that shed more light on that, but yes, under these facts, yes. [00:15:52] Speaker 01: I'm happy to, I'm sorry. [00:15:55] Speaker 02: I guess what I was trying to get at, probably not very artfully, [00:16:01] Speaker 02: I'm talking about the Congress creating a mandatory inspection regime. [00:16:08] Speaker 02: It's not like the secretary may inspect, but it's a secretary must inspect with a particular frequency. [00:16:21] Speaker 02: It seems to me that then since coal or other mines [00:16:30] Speaker 02: is the definition that is pertinent to that inspection requirement that coal or other mine has got to be, um, um, construed to mean some sort of a land or road or some sort of like stationary physical facility that is involved in extraction and related things. [00:16:54] Speaker 02: And then any other equipment [00:16:57] Speaker 02: that is on that land or at that facility that is used in conjunction with those mining activities, those extraction type of activities. [00:17:14] Speaker 02: And so that way you give some meaning to Part C, and Part C means locations can be beyond what is in A and B, but it's still got to be some sort of a facility, a building, that sort of thing, and then the equipment that is, that services the activities that occur there. [00:17:44] Speaker 02: What's wrong with that interpretation? [00:17:47] Speaker 01: I think I understand. [00:17:50] Speaker 01: There are these static items in subsection C, and it would be much easier for them to inspect a facility or a tailing pond that lives in one place. [00:18:00] Speaker 01: And if these trucks are mobile and they travel, then that poses a challenge. [00:18:06] Speaker 01: But the statute says equipment used in mining. [00:18:09] Speaker 01: And insofar as those trucks alone are equipment used in mining, [00:18:14] Speaker 01: would inspect them, though they travel around. [00:18:22] Speaker 02: So, okay. [00:18:24] Speaker 02: I mean, I don't want to belabor this. [00:18:29] Speaker 02: I mean, it can't be the case that a traditional mining company could evade inspection of its trucks by, like, [00:18:43] Speaker 02: secreting them away at some place a few miles away from the mine at a parking lot and say, well, there's no extraction or anything happening there. [00:18:54] Speaker 02: So that physical area is not a mine and these trucks [00:19:02] Speaker 02: can't be considered mines and you can't inspect our trucks, right? [00:19:06] Speaker 02: That would be kind of an absurd result for a mining company to be able to do that. [00:19:14] Speaker 02: But I think that that seems to be distinct from saying that [00:19:31] Speaker 02: kind of a truck. [00:19:41] Speaker 02: It would seem to, I guess I'm just trying to understand, help me understand how the secretary implements the mandatory inspection responsibility under your construction of the statute. [00:20:01] Speaker 01: So I think that the typical scenario is sort of one like this case. [00:20:06] Speaker 01: These trucks travel between the extraction sites and the preparation plant, and then they were located nearby. [00:20:12] Speaker 01: It would be sort of bad business practice to store your trucks extremely far away. [00:20:17] Speaker 01: That's typically how these scenarios play out. [00:20:23] Speaker 01: When a truck is used in mining, the mine end covers it. [00:20:33] Speaker 01: the sort of like travel and geography might lend itself, you know, that would be considered in the analysis. [00:20:42] Speaker 01: But if the truck is used in mining, EMSA, you know, I understand that your question is how will EMSA locate these trucks as they travel around? [00:20:50] Speaker 01: And I think typically EMSA will locate these trucks because they will be nearby, but nearby is not a requirement for the statute to reach those trucks. [00:21:00] Speaker 00: But more broadly, I think, [00:21:02] Speaker 00: This raises the issue of there's a mandatory inspection provision. [00:21:08] Speaker 00: It's in 30 U.S.E. [00:21:10] Speaker 00: 813A. [00:21:11] Speaker 00: And it says you have to inspect twice a year. [00:21:14] Speaker 00: And if you define mine to be equipment, how do you know what all the equipment is so that you must inspect it twice a year? [00:21:23] Speaker 00: I think that's the question. [00:21:27] Speaker 01: Yes. [00:21:31] Speaker 01: Typically, in the mining industry, this equipment, these trucks, et cetera, Emsha has a sense of where they are. [00:21:37] Speaker 01: They're used in mining. [00:21:41] Speaker 01: And so there is a relationship between that equipment and those facilities, et cetera, in the mine, particularly those static facilities, like tailing ponds. [00:21:54] Speaker 01: You know, Emsha has a sense of where things are. [00:21:59] Speaker 01: So in order to inspect, I'm sure we'll find those things. [00:22:04] Speaker 00: So is it your position that these trucks, our equipment, their mines, they would have been inspected? [00:22:10] Speaker 00: Typically they might have been inspected when they had hauled the coal to the physical site and you would have known they were there and inspected them there. [00:22:19] Speaker 00: But in this particular occasion you happen to see them in a place that was not [00:22:24] Speaker 00: physically located at or pertinent to a mine, and you're still allowed to inspect them? [00:22:29] Speaker 00: Is that kind of where we end up in this particular case? [00:22:32] Speaker 01: I think that's fair. [00:22:34] Speaker 01: Emsha did cite these trucks when they were on the extraction area. [00:22:38] Speaker 01: So Emsha had jurisdiction to cite them under A. They also traveled that road. [00:22:43] Speaker 01: So Emsha would have had jurisdiction to cite them on that road. [00:22:46] Speaker 01: And in this instance, they remain [00:22:50] Speaker 01: equipment used in mining, even as they travel away from that extraction area and that road. [00:22:56] Speaker 01: And so in this instance, you know, an inspector discovered them being worked on without being locked against motion. [00:23:03] Speaker 01: And so, you know, the statute still reached them at that time. [00:23:14] Speaker 02: I just want to make sure I understand the facts correctly. [00:23:17] Speaker 02: The trucks that are the subject of these two citations had been cited previously at a different location than where they were located, where they were cited here at this [00:23:44] Speaker 02: the subject of this petition. [00:23:46] Speaker 01: Yes. [00:23:47] Speaker 01: That's correct. [00:23:48] Speaker 01: They have been cited while at the extraction site. [00:23:51] Speaker 02: So I guess one argument in your favor is it would be odd for them, the trucks, to be mines at one time and not mines at another time. [00:24:04] Speaker 01: Yes. [00:24:05] Speaker 01: And the hazards that are associated with those trucks don't disappear when they travel across an imaginary line. [00:24:12] Speaker 02: You may not know the answer to this, but I guess as a practical matter, does IMSA have some sort of regulatory process whereby it requires mining companies to [00:24:28] Speaker 02: kind of give it an inventory, so to speak, of all of their various facilities that might fall within the definition here. [00:24:38] Speaker 01: I apologize that I don't know the answer to that. [00:24:40] Speaker 01: I'm sure as many regulatory sort of record-keeping infrastructures, but I'm not sure about the answer to that question. [00:24:50] Speaker 02: All right. [00:24:52] Speaker 02: One last question. [00:24:54] Speaker 02: It wasn't clear to me. [00:24:56] Speaker 02: We talked about in the Donovan, the stay light case, but the interagency agreement between OSHA and him show I didn't see. [00:25:09] Speaker 02: I think the A. L. J. Decision may have referenced the interagency agreement, but it didn't doesn't seem to be any like [00:25:19] Speaker 02: discussion of it in the commission's decision or I think even the secretary's decision and not in the briefing. [00:25:29] Speaker 02: Is it not relevant or why is that? [00:25:36] Speaker 01: to whether or not Entra will reasonably stay within the bounds of reasonable enforcement. [00:25:46] Speaker 01: The memorandum of understanding [00:25:50] Speaker 01: lays out sort of certain situations where Emsha or OSHA has jurisdiction over very specific things. [00:25:58] Speaker 01: And then it contains a provision that says that the agencies will work together and that they'll attempt to achieve convenience of administration and that they will contact one another when it's relevant. [00:26:13] Speaker 01: And, you know, I think the convenience of the administration piece is quite relevant to this case. [00:26:18] Speaker 01: It makes sense for Emsha to inspect equipment used in mining. [00:26:22] Speaker 01: Emsha is the agency that's tasked with regulating the mining industry. [00:26:26] Speaker 01: And in terms of this particular case, it made sense for Emsha to inspect these trucks in this facility because Emsha was there. [00:26:34] Speaker 01: I hope that that sort of addresses the relevance of the memorandum. [00:26:41] Speaker 02: iteration of that memorandum of understanding in the record here. [00:26:46] Speaker 02: I didn't think I saw it. [00:26:50] Speaker 02: Where would I find it if I wanted to find it? [00:26:52] Speaker 01: I believe it's published in the Federal Register. [00:26:57] Speaker 05: Any other questions? [00:26:58] Speaker 05: I have one, I think just one. [00:27:00] Speaker 05: If we rule for you in this case, we would have to create a circuit split with the sixth circuit [00:27:12] Speaker 05: on what your brief calls a simple question of statutory interpretation that has significant consequences nationwide. [00:27:20] Speaker 05: Is that right? [00:27:22] Speaker 01: No, I would say no. [00:27:25] Speaker 01: The Sixth Circuit has already split with this court. [00:27:28] Speaker 01: The maxim is out of step with national cement and with Carolina's daylight. [00:27:35] Speaker 01: Maxim requires a locational, maxim requires that subsection C items be located on subsection A or B mines. [00:27:46] Speaker 01: And that's just not congruent with cases of this court has already decided. [00:27:51] Speaker 01: So it's the sixth circuit that has already split from this court. [00:27:54] Speaker 05: So we would be reaffirming all that stuff I just said, rather than creating it. [00:27:59] Speaker 05: Is that right? [00:28:02] Speaker 01: Yes. [00:28:02] Speaker 01: Thank you. [00:28:05] Speaker 02: So you said that we have already said that seeing [00:28:11] Speaker 02: extends beyond physical locations that are in A and B. When did we do that? [00:28:17] Speaker 01: Donovan v. Carolinas Daylight addresses a facility that is not located on Subsection A, land, area of land where minerals are extracted. [00:28:30] Speaker 01: In that case, this court said that the Subsection C facility need not be located on that land. [00:28:37] Speaker 01: And then in national cement, this court recognized that the Subsection C was an independent basis for jurisdiction and that vehicles [00:28:47] Speaker 01: equipment need not be located on a subsection A area of land. [00:28:55] Speaker 01: You know, I recognize that in national cement these trucks were on a subsection B road, but this court did not hold that they were required to be on a subsection B road in order for subsection C to attach. [00:29:14] Speaker 02: So okay, I hear your argument. [00:29:20] Speaker 02: I think that in Donovan, I guess we didn't say that that particular facility was in a location that fell within subsection B. We did point out that the facility was [00:29:39] Speaker 02: was basically directly adjacent to the extraction area, but I guess I take your point that that wouldn't make it within subsection B because B says private ways and roads and we didn't rely on subsection B to find that to be a facility we relied on subsection C. [00:30:00] Speaker 01: Yes. [00:30:01] Speaker 01: And I would also say that this court didn't rely on the fact that it was adjacent. [00:30:05] Speaker 01: It happened to be adjacent. [00:30:06] Speaker 01: But that didn't bear on the application of subsection C to that facility. [00:30:13] Speaker 02: Thank you. [00:30:16] Speaker 02: All right. [00:30:16] Speaker 01: Thank you very much. [00:30:25] Speaker 04: Please support James McHugh on behalf of KC Transport. [00:30:28] Speaker 04: Before I launch into my argument, I did want to clarify two points. [00:30:32] Speaker 04: One is that the trucks that were sighted in this case were not the ones that had previously been sighted by the inspector. [00:30:38] Speaker 04: He was going up to find two different trucks and then he sighted these trucks. [00:30:42] Speaker 04: I just wanted to clear that up. [00:30:44] Speaker 04: And then as far as the memorandum of understanding, it's my understanding that it came down as a result of like the last sentence in section 3H that talks about milling. [00:30:54] Speaker 04: And because milling facilities sometimes are crossed between a milling facility under 3-H and an actual manufacturing facility, the Congress said, wait, you know, you need to get together and work this one out because it's right on the edge of a manufacturing and a milling facility. [00:31:14] Speaker 05: Let me ask a fact question. [00:31:16] Speaker 05: This is probably not going to decide the outcome of the case, but I don't know a lot about coal mining. [00:31:21] Speaker 05: The statute talks about extraction, milling, and preparation. [00:31:26] Speaker 05: I get what extraction is. [00:31:28] Speaker 05: What's the difference between milling and preparation? [00:31:33] Speaker 04: There's definitions for those different things. [00:31:35] Speaker 04: Preparation plant is how they get the coal ready to ship it out, Your Honor, and the cases talk about how the extent of the preparation plant. [00:31:45] Speaker 04: Preparation plants are regulated. [00:31:46] Speaker 04: In fact, this elk creek plant was a preparation plant, not an extraction plant. [00:31:50] Speaker 04: But it wasn't a milling plant. [00:31:53] Speaker 04: So there's some distinctions in the definitions on what a milling plant is. [00:32:00] Speaker 00: So the stipulated facts say that the sited trucks are inspected regularly by MSHA when they are at the five ramical resources mines. [00:32:09] Speaker 00: and at the El Creek prep plant along the hall road. [00:32:12] Speaker 00: So these trucks are inspected regularly. [00:32:15] Speaker 00: They just happened in this particular occasion to be in a parking lot. [00:32:19] Speaker 04: Your Honor, yes, the trucks are inspected regularly in the sense that when they're on the mine site, for example, when they're at the prep plant, when they're at the extraction sites, and when they're on the roads, they are inspected regularly. [00:32:31] Speaker 00: So your position is that they're a mine when they're at the extraction site, but they're not a mine when they're in the parking lot? [00:32:37] Speaker 04: Yes, your honor, when they're at the extraction site, the milling site, or the extraction site, the preparation site, and on the road, we agree they can be inspected. [00:32:47] Speaker 04: Because at that point, the contractor becomes an operator when he's performing services at the mine. [00:32:53] Speaker 04: And these trucks can be inspected, your honor. [00:33:01] Speaker 04: KC Transport's position is you have an independent maintenance facility, KC Transport. [00:33:06] Speaker 04: They have five of these. [00:33:07] Speaker 04: They're spread out. [00:33:08] Speaker 04: Some of them are in the middle of town that service trucks. [00:33:11] Speaker 04: This one happens to be where it is, which the facts talk about. [00:33:15] Speaker 04: Our KC Transport point is [00:33:18] Speaker 04: If the Secretary's analysis of Section 3H is approved, then there really is no stopping point. [00:33:26] Speaker 04: I think the Court's already talked about some of the situations that could come up, like equipment manufacturers refurbishing, equipment refurbishing. [00:33:35] Speaker 04: Tire repair, for example, radio repair, sawmills that cut timbers to go into the mine. [00:33:42] Speaker 04: Because this is an equipment that is to be used in mine, a timber, while it's sitting at the sawmill, it would be subject to IMSA regulation under the secretary's limitless approach. [00:33:54] Speaker 04: Warehouses with fork trucks would be subject to the secretary's approach. [00:33:59] Speaker 04: And I'm sure that the court and the commission has talked about some of these other things. [00:34:03] Speaker 04: And that's why it's so important in KC Transport's position to look at the Section 3H1 as an overall whole regulation under Chevron. [00:34:15] Speaker 04: In other words, not to isolate Subdivision C and say, well, Subdivision C says equipment used or to be used or resulting from mining. [00:34:28] Speaker 04: That's an overly broad reading. [00:34:31] Speaker 04: You're taking one section out of context. [00:34:34] Speaker 02: Just so that I'm clear about your argument, the legal structure of your argument. [00:34:39] Speaker 02: You are not contending that subsection C is unambiguous. [00:34:45] Speaker 02: That's correct, Your Honor. [00:34:46] Speaker 02: You concede that it's ambiguous. [00:34:49] Speaker 02: Oh, no, no. [00:34:49] Speaker 02: No, I say it's unambiguous. [00:34:52] Speaker 02: You think that it's unambiguous? [00:34:54] Speaker 02: Yes, Your Honor. [00:34:59] Speaker 02: So we should find that it's unambiguous, at least with respect to this application. [00:35:04] Speaker 02: or it's unambiguous in general? [00:35:07] Speaker 04: I think it's unambiguous in general, Your Honor, and the reason I think that is because even this court in [00:35:18] Speaker 04: The Cal Portland case says that if you read it and you have some thoughts or some second guesses on first reading, you still have to consult all of the tools of statutory construction, such as text, structure, history, and purpose. [00:35:34] Speaker 04: And what Maxim did and what the commission did here is they looked at C and they said, okay, lands and equipment, [00:35:41] Speaker 04: But when we look at this, it's in relation to extraction areas, roads, preparation areas, milling areas. [00:35:51] Speaker 04: So in other words, you can't just look at C in isolation and say, okay, if an equipment's used in or to be used in or resulting from mining, that it's automatically a mine. [00:36:04] Speaker 04: Because that's not the way Congress intended. [00:36:06] Speaker 04: Surely Congress did not intend [00:36:08] Speaker 04: to regulate the coal truck, for example, that drives to California and says that when this person who's driving it arrives at their parents' house for dinner, they've got to, you know, chalk it. [00:36:20] Speaker 04: Now, should they do that? [00:36:21] Speaker 04: Yes. [00:36:21] Speaker 02: How do you explain our decision in Donovan B. Stay Light? [00:36:26] Speaker 02: We relied on subsection C there, right? [00:36:30] Speaker 02: Or the secretary did and we have held that as reasonable, right? [00:36:35] Speaker 04: Subsection C in the Donovan v. Staylight case, that's a preparation plan. [00:36:40] Speaker 04: In other words, the mining materials, the gravel or an aggregate was going directly into this gravel processing facility. [00:36:47] Speaker 04: So that becomes a processing plant under section C. So our position is that when a equipment is being used at an extraction site, [00:36:59] Speaker 02: processing site or on the road it can be it can be inspected it's there's jurisdiction for that and that goes to the question of what the court you brought up your honor that how do you know what equipment but that that's not what the Sixth Circuit said and that's not what the Commission said the Commission said that and I'm looking at JA 164 the Commission said [00:37:28] Speaker 02: you know, after construing this statute that Subsection C does not have a further geographical extension of jurisdiction beyond A and B. And I don't see how that's consistent with our decision in [00:37:54] Speaker 02: in Donovan, and I don't see how that's a correct interpretation of the statute. [00:38:02] Speaker 02: It's not what you're saying to me right now. [00:38:04] Speaker 04: Well, I mean, what I'm basing mine on is the fact that the Elk Creek Prep Plant is part of the extraction, it is part of the extraction operations just as the canola, I'm sorry, the staylight case was. [00:38:21] Speaker 04: In that case, it was even more clear because the [00:38:27] Speaker 04: Conveyors went right into this facility, so it was like right there. [00:38:31] Speaker 04: It was adjacent and pertinent to. [00:38:33] Speaker 04: So it falls under the commission's rule there. [00:38:36] Speaker 02: I don't think, you know, the commission didn't, the secretary didn't rely on B there, and this was upheld under C. Yeah, I meant it was next to A. Yeah. [00:38:50] Speaker 02: But it didn't fall within A, technically, and it didn't fall within B. [00:38:56] Speaker 02: Right? [00:38:57] Speaker 02: You would agree that it didn't fall within A or B and it fell within C and died of it. [00:39:03] Speaker 04: I think in all, the state of my recollection of it, and I'd have to look at it again, but as I understand it was a prep plant that was adjacent to the extraction facility and the extraction facility dumped its gravel right into the prep plant. [00:39:15] Speaker 04: I mean, that's my thumbnail recollection of it. [00:39:21] Speaker 04: So our point is that the commission is correct that C is not just a read-alone thing without a locational reference. [00:39:33] Speaker 04: That the lands and the equipment must have a locational reference to the areas that are mined. [00:39:40] Speaker 02: Another thing that the commission said was that the Coal Act [00:39:46] Speaker 02: The definition of coal mine in the coal act, this is at J161. [00:39:57] Speaker 02: They said they listed the definition of a mine from the Cole Act. [00:40:03] Speaker 02: And then they said, you know, the Mine Act that came eight years later was only intending to clarify the definition and it wasn't intended to expand the definition. [00:40:21] Speaker 02: And I'm not sure how that can be right because the Mine Act [00:40:28] Speaker 02: retained the definition of mine from the coal act, but they put it in H2. [00:40:39] Speaker 02: So that's in, you know, 802H2. [00:40:44] Speaker 02: It said that it includes a definition for coal mine that applies to certain subchapters, subchapters two, three, and four. [00:40:54] Speaker 02: And when I look at the definition of coal mine, [00:40:58] Speaker 02: and looked at the definition of mind from the Cole Act, it seems to be verbatim to say. [00:41:05] Speaker 02: Do you agree with that? [00:41:08] Speaker 04: Your Honor, to start where you started with the Commission saying that they were attempting to clarify the Coal Act, and I think in context what their comment was, the clarification was, in addition to just the straight extraction area, you've got these other things that are listed in C, and these are intended to be those things that are around a mine, otherwise. [00:41:34] Speaker 04: And I think that's the point that the commission was trying to make. [00:41:38] Speaker 04: And I think it's well-founded. [00:41:39] Speaker 04: It's the same point that the Maxim Rebuild Court made. [00:41:45] Speaker 04: As far as the specific language of the COWAC, I can't answer your question on that, Your Honor, because I haven't looked at that the way Your Honor did. [00:41:57] Speaker 05: Do you think Donovan would have come out [00:42:00] Speaker 05: the same way as it did in our court if Donovan had applied the Sixth Circuit test. [00:42:07] Speaker 05: And I think the Sixth Circuit test says it'll be covered by H1C if it's adjacent to an extraction site. [00:42:18] Speaker 04: I think, Your Honor, it probably would have come out similar because it's not only adjacent, it was integrated. [00:42:27] Speaker 04: It was an integrated extraction slash preparation facility. [00:42:31] Speaker 04: So I think even the Sixth Circuit would probably agree on the Donovan versus Staylight case. [00:42:38] Speaker 04: I think the Sixth Circuit's situation deals more with these independent [00:42:43] Speaker 04: non-mining related companies that are doing things other than mining, other than extraction, other than milling, and other than preparation. [00:42:51] Speaker 04: Those, you know, saw mills, you know, tire repair companies, radio repair companies, and independent facilities that repair trucks, whether it's KC Transport's repair facility or the repair facility down at the corner, [00:43:08] Speaker 04: where the coal truck leaves the mine site and goes there to get a tire replaced. [00:43:15] Speaker 04: I think that was the difference between those two. [00:43:22] Speaker 04: So I think our reading of the regulations or the statute is entirely consistent with what the court normally does under Chevron, which is they look at the statute and then they look at the tools of regulatory construction to see how that section relates to everything above and below it, including not just in section H but also section D that the commission looked at as far as when is a contractor an operator, when they're at the mine performing services. [00:43:52] Speaker 04: Under the secretary's reading, they'd be an operator all the time, even off the mine site. [00:43:58] Speaker 04: So there would be no need for Section D to stay while they're at the mine site. [00:44:03] Speaker 02: I think that was the commission's point on looking at D. It wasn't to... Let's suppose you had a coal mining company and they had, you know, they have a hundred different sorts of trucks and other vehicles that are used for the coal mining. [00:44:21] Speaker 02: And the inspector shows up and says, I want to inspect all your trucks. [00:44:29] Speaker 02: And some of the trucks are there physically at the mine. [00:44:35] Speaker 02: And some of them are at basically a storage parking facility that's 10 miles away. [00:44:46] Speaker 02: Can the inspector? [00:44:49] Speaker 02: Say, well, I want to inspect all the trucks. [00:44:51] Speaker 02: I want to inspect the ones that are here and I want to go to this other parking lot. [00:44:57] Speaker 02: and inspect the ones that are there, or can the inspector only inspect the trucks that are at the physical model? [00:45:05] Speaker 04: And you're talking about a trucking facility, your honor, correct? [00:45:09] Speaker 04: If it's a trucking facility, our position is they can inspect the trucks at the mine while they're engaged in mining services, because at that point, the commission has stated, or the Congress has stated, they're part of the mine. [00:45:23] Speaker 04: But when they're at the trucking facility undergoing repairs, there's no locational nexus between the trucking company. [00:45:33] Speaker 02: So I'm just trying to make the hypothetical as simple as possible. [00:45:37] Speaker 02: So these are trucks that aren't owned and operated by some independent contractor like your client. [00:45:46] Speaker 02: The ABC coal mining company owns these trucks. [00:45:52] Speaker 02: But at the time that the inspector shows up at the actual physical mine, it's like, I know you all have some other trucks that aren't here. [00:46:01] Speaker 02: I want to see those and inspect those. [00:46:05] Speaker 02: And they're like, well, those are at our lot, which is 10 miles away. [00:46:10] Speaker 02: But we're not going to let you inspect those because they're not here at the mine. [00:46:15] Speaker 02: Would that be a correct way for the statute to work? [00:46:21] Speaker 04: I don't think so, your honor, because I think that the equipment, because equipment is so fungible, that they have to be at the mine site. [00:46:31] Speaker 04: That's the only realistic way to do it, even in this case. [00:46:34] Speaker 02: I want to make sure I understand, because maybe I didn't, I got too many negatives or something in my question. [00:46:43] Speaker 02: Can the inspector go to the parking lot 10 miles away where ABC Coal Mining Company stores its trucks and inspect? [00:46:54] Speaker 02: Yes or no? [00:46:55] Speaker 04: No, Your Honor, because that's no different than [00:47:00] Speaker 04: ABC Coal Company has bought three continuous miners from this manufacturing company, and they're sitting on the dock at the manufacturing company. [00:47:09] Speaker 04: The inspector would say, I want to see those continuous miners. [00:47:14] Speaker 04: I know they haven't been delivered yet, but they're to be used in coal mining. [00:47:17] Speaker 04: I want to go inspect those. [00:47:19] Speaker 04: That's not what Congress intended here. [00:47:22] Speaker 04: Congress intended for the inspector to inspect what's at the mine. [00:47:28] Speaker 04: So that would be my response to that, your honor. [00:47:32] Speaker 04: I understand, I know you're trying to make a close call. [00:47:37] Speaker 05: Could OSHA? [00:47:38] Speaker 05: or the inspectors for OSHA inspect the trucks in Judge Wilkins' hypothetical? [00:47:44] Speaker 04: OSHA certainly do it. [00:47:45] Speaker 05: Absolutely. [00:47:47] Speaker 05: What's the pragmatic reason for wanting OSHA to do it when the mine inspector, he's inspecting the other 99 out of 100 trucks and this one truck is 10 miles away, he's in the area already, seems maybe more efficient to just let him do 100. [00:48:09] Speaker 04: Well, the pragmatic aspect is basically what this court recognized in national cement when the secretary first came with a very broad definition of their jurisdiction. [00:48:22] Speaker 04: And the court said, no, you can't have a vague definition that's based on prosecutorial discretion. [00:48:29] Speaker 04: That doesn't work. [00:48:30] Speaker 04: That's not doable. [00:48:31] Speaker 04: Go back and actually come up with something that's reasonable. [00:48:34] Speaker 05: I get it, but I guess. [00:48:36] Speaker 05: Why do you care whether it's a mine inspector or an OSHA inspector? [00:48:42] Speaker 04: Your Honor, I care because Congress cared. [00:48:45] Speaker 04: And Congress set out the statute and put these in mining and these in OSHA. [00:48:53] Speaker 04: And like some of my examples I gave, for example, the timbers that are going to the mine, you know, and she doesn't regulate any kind of logging or saw mills or anything like that. [00:49:05] Speaker 04: So if you take it to this, [00:49:08] Speaker 04: no stopping point degree you step on OSHA regulations. [00:49:12] Speaker 04: These mechanics are customarily used to OSHA regulations because the other five KC transport facilities are inspected by OSHA and that's where they work and maybe they transfer over here and maybe that's what they're trained for so then you have when they just happen to be at this facility they have to undergo different regulations different training and it's just very confusing whereas [00:49:35] Speaker 04: The statute is a very bright line rule. [00:49:38] Speaker 04: If you're at the mine, jurisdiction attaches. [00:49:41] Speaker 04: And I think that's what the maximum court was trying to bring out. [00:49:46] Speaker 04: I think that's what the commission was trying to bring out. [00:49:49] Speaker 00: Well, Congress wanted to protect miners and promote mine safety. [00:49:54] Speaker 00: And under your reading of the statute, a mining company can avoid inspection by just moving equipment off the site. [00:50:07] Speaker 04: Well, I understand your point, Your Honor. [00:50:12] Speaker 04: I don't think that would be the intention, but the thing is, if you go overly broad like the Secretary has, there's just no limits. [00:50:24] Speaker 04: No one has any predictability. [00:50:28] Speaker 04: You know when you look at A, B, and C that when the trucks are at these sites, extraction, milling, preparation, and roads, that they're subject to inspection. [00:50:37] Speaker 04: And that best protects the miners. [00:50:41] Speaker 04: The secretary says they don't have the resources to go out and inspect all these other places. [00:50:46] Speaker 04: Well, I mean, the best way to protect the minors is to use the resources for what Congress intended, not what Congress did not intend. [00:50:55] Speaker 04: That's what OSHA is for. [00:50:56] Speaker 00: But if Congress intended for subsection C to be limited in the way that you say, why didn't they just say that? [00:51:02] Speaker 00: They didn't say that. [00:51:06] Speaker 04: Well, Your Honor, I mean, I understand your point, and there's been people, we've argued a lot about this. [00:51:15] Speaker 04: It seems that if you look at it in the relation of the Coal Act to the Mining Act, and then A, B, and C, like it is, [00:51:25] Speaker 04: and apply it the way Maxim did, where you look at the lands and the equipment, and then you kind of look back and say, well, where are these lands and the equipment? [00:51:34] Speaker 04: Well, they're at the extraction site, the milling site, the preparation site, and on the road. [00:51:38] Speaker 04: Then, at that point, I think they did say it. [00:51:41] Speaker 04: I think it is clear at that point. [00:51:43] Speaker 04: Like I said, in the Cal Portland, this court said, it may not always be easy to read it the first time, but when you pull the lens back and you look at, [00:51:53] Speaker 04: the three sections together, then you can understand what they're saying. [00:51:57] Speaker 04: And then when you throw in on top of it, the commission said under section 3D that contractors become operators when they're at the mine site. [00:52:09] Speaker 04: If it's as broad as the secretary, if it's interpreted that way, then that section of the statute would have no effect because contractors [00:52:18] Speaker 04: with these type of equipment would always be operators. [00:52:24] Speaker 02: And that can't be what Congress intended, otherwise they wouldn't have added that other section. [00:52:43] Speaker 02: Kept you up a long time, Mr. McHugh, if you have any final arguments that you didn't get a chance to make, why don't you take a minute or so to make those. [00:52:56] Speaker 02: Thank you, Your Honor. [00:52:57] Speaker 04: The last thing I would say is, EMCHA asserts in their brief and [00:53:01] Speaker 04: It's always been this way. [00:53:05] Speaker 04: This is no surprise. [00:53:06] Speaker 04: But even in this case, just a few years ago, there's some internal inconsistencies where there was a citation of a shipping trailer that's in the briefs that was vacated. [00:53:15] Speaker 04: It was down next to the hall road. [00:53:19] Speaker 04: But the secretary chose to vacate that when KC Transport raised the jurisdictional argument. [00:53:24] Speaker 04: And then, in this case, the secretary's first position was, we want the trucks. [00:53:30] Speaker 04: We want to assert jurisdiction over the trucks. [00:53:34] Speaker 04: When that was determined by the ALJ and the commission to be, you know, not appropriate, then they said, well, we want the trucks and the facilities. [00:53:47] Speaker 04: And then now, before this court, they say, we want the trucks and the facilities, but only to the extent our resources allow. [00:53:53] Speaker 04: So what my point is, is the secretary's position has never been consistent on this. [00:54:00] Speaker 04: You know, yes, we can look at some older cases and we can say, well, this is the way it was in that older case. [00:54:06] Speaker 04: like Jim Walter, but the court said maybe the arguments weren't made like they are here. [00:54:12] Speaker 04: Maybe, who knows? [00:54:14] Speaker 04: But the commission said, no, that's not persuasive to us. [00:54:17] Speaker 04: We're not going to follow that. [00:54:19] Speaker 04: But my point is, is because the secretary has never been consistent on this, there's no, the court should never give them deference on this because part of the requirement to get deference is you have to be consistent. [00:54:31] Speaker 04: You have to treat this trucking company like this tire company. [00:54:35] Speaker 04: or this trucking company like this sawmill manufacturer that's making timbers. [00:54:40] Speaker 04: That's the problem. [00:54:41] Speaker 04: If you go down, if you get too broad, then you get inconsistent. [00:54:47] Speaker 04: And I think that's what this court tried to point out in the National Summit. [00:54:50] Speaker 04: Thank you. [00:54:51] Speaker 02: Thank you. [00:54:56] Speaker 02: All right. [00:54:57] Speaker 02: Ms. [00:54:58] Speaker 02: Maltz, you were out of time, but we'll give you three minutes for your vote. [00:55:08] Speaker 01: Thank you. [00:55:09] Speaker 01: So I'll just to address a few things that my colleague mentioned. [00:55:13] Speaker 01: The secretary's position is that the statute is unambiguous. [00:55:16] Speaker 01: The secretary is not asking this court for deference. [00:55:19] Speaker 01: The secretary is simply asking that this court read the plain meaning of the statute as the secretary does. [00:55:29] Speaker 01: You know, I'd like to address this sort of reasonable enforcement issue. [00:55:35] Speaker 01: KC Transport suggests that there will be this sort of parade of horribles. [00:55:40] Speaker 01: Emsha will go to Judge Walker's mother's house and cite trucks. [00:55:45] Speaker 01: There's been no evidence in the record that Emsha has ever done anything like that. [00:55:50] Speaker 01: There's been no evidence that Emsha cited trucks in diner parking lots. [00:55:54] Speaker 01: This, you know, the statute is not limitless. [00:55:57] Speaker 01: If there is a limiting principle in the statute, it's whether something's used in mining, and MTA does not go out to the fringes to terrorize diner parking lots. [00:56:06] Speaker 01: That's just not what's occurred. [00:56:13] Speaker 01: You know, I think we have discussed the plain meaning of the statute, and it's been thoroughly briefed. [00:56:19] Speaker 01: But I'll just say that the secretary disagrees with Casey Transport's reading of the statute. [00:56:24] Speaker 01: Subtension C does not contain a locational requirement. [00:56:28] Speaker 01: And Congress did that deliberately. [00:56:30] Speaker 01: And Congress was clear that what is to be considered a mine on this act should be given the broadest possible interpretation, and, you know, close cases should be resolved in favor of Mine Act coverage. [00:56:44] Speaker 01: I would also like to address sort of this question about whether or not Maxim applies, you know, the facts that Maxim might bear on this court's decision in Carolina's daylight. [00:57:01] Speaker 01: While that facility was adjacent to the extraction site, [00:57:06] Speaker 01: Those aren't the grounds on which the court decided that subsection C applied. [00:57:11] Speaker 01: Maxim is a radical redefinition of the statute. [00:57:14] Speaker 01: Maxim requires a locational requirement that Congress did not, you know, Congress didn't put into the statute. [00:57:23] Speaker 01: Maxim puts that into the statute on its own. [00:57:27] Speaker 05: Um, and, you know, on that on that point, and maybe this is not fair to ask, ask you, um, as opposed to you and all the people who would have gone into this decision. [00:57:38] Speaker 05: But if Maxim was a radical redefinition of the statute and it was going to have, as your brief says, profound importance to the safety of minors, it seems odd that you didn't seek cert or did you? [00:57:52] Speaker 05: I don't think you saw, sir, but if I'm wrong about that, no, correct me. [00:57:56] Speaker 01: The secretary did not seem, sorry. [00:57:58] Speaker 05: Doesn't it seem odd? [00:57:59] Speaker 01: Maybe odd, yes. [00:58:01] Speaker 01: I do think that it is fair that you find that odd. [00:58:07] Speaker 05: Thanks for your candor. [00:58:09] Speaker 05: Thank you. [00:58:10] Speaker 00: Have any other circuits adopted Maxim, or have any other circuits adopted what we said in the National Summit? [00:58:19] Speaker 01: No other circuits have adopted Maxim. [00:58:21] Speaker 01: I think that the Fourth Circuit has [00:58:26] Speaker 01: Harmon in the Fourth Circuit sort of, I apologize that I don't have the facts of Harmon at hand, but other circuits have sort of considered Amtrak's jurisdiction and only the sixth has required this locational element. [00:58:44] Speaker 01: I'd also like to address, just very briefly, Section 3D and the Commission's sudden announcement in its decision that independent contractors are only citable as operators under the Act if they are physically present at the mine. [00:58:57] Speaker 01: The Commission did not have jurisdiction to raise that issue. [00:59:01] Speaker 01: That issue appeared for the first time in the Commission's decision. [00:59:04] Speaker 01: There are two avenues for the Commission to reach an issue. [00:59:11] Speaker 01: It can be raised by the parties, or the Commission can direct [00:59:14] Speaker 01: review of that issue on its own, but directing review of that issue on its own requires the commission to hold the vote. [00:59:21] Speaker 01: Oh, I apologize, I see I'm over time. [00:59:22] Speaker 01: I'll just very quickly conclude. [00:59:25] Speaker 01: It requires the commission to hold the vote and it requires the commission to issue an order announcing the issue that it plans to reach. [00:59:33] Speaker 01: And the commission didn't do that here. [00:59:34] Speaker 01: The commission did not have jurisdiction to reach the 3D, section 3D question. [00:59:41] Speaker 02: I have a question. [00:59:44] Speaker 02: So I mentioned before that the legislative history that was cited by the parties, the Senate report, talked about how this new definition of coal or other mine was incorporating a definition from the Federal Metal and Non-Metallic Mine Safety Act. [01:00:07] Speaker 02: And I just pulled that act up in the definition of mine from that act. [01:00:15] Speaker 02: And in the subsection three definition from that definition of mine does appear to be verbatim taken into the new statute that we have here in the Mine Act from 1977. [01:00:36] Speaker 02: except that it left out some language with respect to radioactive materials. [01:00:43] Speaker 02: And I don't know if it mentions that in the Senate report that was cited, but there was a House conference report that I don't think that the parties cited for the Mine Act of 77, but it talked about the fact that this radioactive materials wasn't going to be included in the definition of mine for the Mine Act of 77. [01:01:09] Speaker 02: All of this is a long way of saying that [01:01:13] Speaker 02: Wouldn't it be relevant to see how, if at all, courts and or the secretary interpreted this identical language from this prior act to see what [01:01:36] Speaker 02: the construction should be when it has been kind of engrafted into the MINE Act? [01:01:45] Speaker 01: Yes, it could be relevant. [01:01:46] Speaker 01: I apologize for not being familiar with the language of that act, but I think what's more relevant here is how, you know, is the plain meaning of the statute of the MINE Act and how this court has applied that plain meaning. [01:01:59] Speaker 02: I mean, I don't know that it's the case, but what if a court had construed this prior act and said that we think that the plain meaning is X? [01:02:11] Speaker 02: I mean, that would be something that we would want to know, right? [01:02:17] Speaker 01: That would be very relevant, yes. [01:02:21] Speaker 02: Any other questions? [01:02:24] Speaker 02: No. [01:02:24] Speaker 02: All right. [01:02:25] Speaker 02: Thank you. [01:02:25] Speaker 02: We'll take the matter under advisement. [01:02:27] Speaker 01: Thank you very much.