WHERE THERE’S SMOKE THERE’S FIRE? THE D.C. CIRCUIT CONFIRMS THE COMMISSION’S ADOPTION OF THE SECRETARY’S INTERPRETATION OF “MINE FIRE”
August 10, 2015
By: Dana M. Svendsen
For clients and friends of Jackson Kelly PLLC
Volume 11, Number 24
©2015 Jackson Kelly PLLC
On July 31, 2015, the D.C. Circuit Court of Appeals (the “Court”) evaluated and denied the petition for review of The American Coal Co., (Docket No. LAKE 2010-408-R), upholding the Commission’s finding that the existence of a mine “fire” does not require the presence of flame. In bringing the petition for review, American Coal argued that the citation and fine should be vacated because a “fire,” for purposes of the Mine Act, exists only when there are visible flames. American Coal contended that even if a fire could exist without visible flames, there was insufficient proof in this case to show a fire of any kind. The Court disagreed on both points and denied American Coal’s petition for review.
This case arises from events in January 2012, when two MSHA inspectors visited a large coal stockpile and observed five separate areas of the stockpile where coal was “smoldering” and/or “smoking,” but observed no flames. As a result of the observations, the MSHA inspector issued a § 103(k) order prohibiting activities on the stockpile. American Coal contested the validity of the § 103(k) order arguing that “fire” requires the presence of flame, and that without flames, there was no “accident” permitting the issuance of the § 103(k) order. Section 103(k) of the Mine Act provides, in pertinent part: “[i]n the event of any accident occurring in a coal or other mine, an authorized representative of the Secretary, when present, may issue such orders as he deems appropriate to insure the safety of any person in the coal or other mine. . .” 30 U.S.C. § 813(k) (emphasis added). Section 3(k) of the Mine Act defines the word “accident” to “include a mine explosion, mine ignition, mine fire, or mine inundation, or injury to, or death of, any person.” 30 U.S.C. § 802(k) (emphasis added).
The Court found that since statutory term “fire” is ambiguous, the Secretary of Labor (the “Secretary”) reasonably determined that the term does not require the presence of flames, and substantial evidence supports the conclusion that the smoldering patches on American Coal’s stockpile satisfied the Secretary’s interpretation of a “fire.” The Court also concluded that the Secretary reasonably interpreted “mine fire” to include “both events marked by flaming combustion and events marked by smoldering combustion that reasonably has the potential to burst into flames.”
Operators will want to review their policies and training on what constitutes a mine fire in light of this decision. The Court found that the Secretary’s oversight was limited by the Secretary’s decision to limit the definition to smoldering fires that “reasonably could burst into flame at any time,” as opposed to all smoldering combustion.
The Court agreed with the Secretary and found that this interpretation allows operators and inspectors to focus their attention where it will do the most good and avoids unduly or unnecessarily burdening operators or keeping inspectors from attending to other important matters.
This article was authored by Dana M. Svendsen, Jackson Kelly PLLC.