Where There’s Smoke There’s Fire: Regulating by Idiom

1. Where There’s Smoke There’s Fire:Regulating by Idiom West Virginia Coal Association 37th Annual Mining Symposium February 3, 2010 Charleston Civic Center Charleston, WV Robert Huston Beatty, Jr. Dinsmore & Shohl LLP 215 Don Knotts Blvd., Suite 310 Morgantown, WV 26501 robert.beatty@dinslaw.com www.coallaw.com Helping you Mine Safely and Productively™

2. Idiom • Definition: a group of words whose meaning cannot be predicted from the meanings of the constituent words • “Where There’s Smoke, There’s Fire”

3. Case Study • Coal operator has several hundred thousand tons of coal on a stockpile • MSHA inspects the stockpile and claims to observe 5 separate locations smoking with white colored ash surrounding the areas • MSHA issues a 103(k) order on the stock pile

4. In 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 … 103(k) Control Order

6. 30 CFR §50.10 • Four hours later MSHA issues a 104(a) S&S citation under §50.10 • §50.10 requires the operator to immediately contact MSHA at once without delay and within 15 minutes … once the operator knows or should know that an accident has occurred.

8. 30 CFR §50.2(h)(6) (h) Accident means(6) In underground mines, an unplanned fire not extinguished within 10 minutes of discovery; in surface mines and surface areas of underground mines, an unplanned fire not extinguished within 30 minutes of discovery

9. “The Rest Of The Story” • MSHA did not test the coal in the 5 cited areas identified in the 103(k) order • MSHA did not take any temperature readings in the 5 cited areas identified in the 103(k) order • MSHA did not test for carbon dioxide in the 5 cited areas identified in the 103(k) order • Foggy, rain, and misty weather conditions were present • No flames were present in any of the 5 cited areas either before the 103(k) order was issued, or 4 hours later when the §50.10 citation was issued

10. Questions Raised By The Case • Was a 103(k) order appropriate based on the facts? (i.e. was it necessary for MSHA to “insure the safety of any person in the coal or other mine …” • Should the 103(k) order be lifted? • Was there an “accident” under §50.2(h)(6)? • Can there be a fire without flames?

11. Can There Be Smoke Without Fire? • MSHA says: “Where There’s Smoke There’s Fire” • §50.2(h)(6) defines accident as …. an unplanned fire (in surface mines and surface areas of underground mines) not extinguished within 30 minutes of discovery • Before the operator is required to report a “fire” as an accident, it must find the fire, determine if it was (planned or unplanned), and try to extinguish the fire • If the fire is unplanned and you cannot extinguish it within 30 minutes, §50.10 requires you to report the event within 15 minutes, right?

12. A large electric mining shovel was moved to a salvage yard several miles away from active mining operations Contractor arrived on the property to cut the machine into pieces using oxyacetylene torches An event occurred in the body of the machine involving the torches and accumulated grease Phelps Dodge Tyrone, Inc. CENT 2006-212 (Aug. 2008)(ALJ Manning)

13. Phelps Dodge Tyrone, Inc. CENT 2006-212(Aug. 2008)(ALJ Manning) • MSHA argued that a fire occurred inside the machine which started from the torch igniting the grease • At the trial Phelps Dodge argued that “where there are no flames there is no fire” • Phelps Dodge was issued a §50.10 citation for failure to report the event

14. Phelps Dodge Tyrone, Inc. CENT 2006-212(Aug. 2008)(ALJ Manning) • Judge Manning’s decision: • The term “mine fire” is not defined in the Mine Act or the regulations • Thus, a “mine fire” is a fire that occurs in a “coal or other mine” as the term mine is defined in section 3(h)(1) of the Mine Act

15. Phelps Dodge Tyrone, Inc. CENT 2006-212(Aug. 2008)(ALJ Manning) • The term “fire” can be defined as a “rapid, persistent chemical change that releases heat and light and is accompanied by flame, especially the exothermic oxidation of a combustible material” American Heritage Dictionary of the English Language, 62 (4th ed. 2006)

16. Phelps Dodge Tyrone, Inc. CENT 2006-212(Aug. 2008)(ALJ Manning) • Judge Manning agreed with Phelps Dodge that flames must be present for there to be a fire. Grease that is smoking without any flames is not immediately reportable under §50.10 • “I agree with Phelps Dodge that there can be smoke without fire, but I find that once flames appear, it is a fire”

17. Review Commission Case • The operator appealed Judge Manning’s ruling arguing: • That any fire that took place was not “unplanned” under the plain meaning of that term • There was no evidence that flames were present for 30 minutes, and therefore Judge Manning erred in affirming the citation • Phelps Dodge did not have notice of the requirements of the regulation (i.e. that smoke alone equals fire)

18. Review Commission Case • The Secretary argued: • The meaning of “fire” is ambiguous, and there is reputable authority to consider a “fire” to include not just flames, but also smoldering, glowing, or non-flaming combustion • MSHA cited the preamble to the Emergency Temporary Standards (ETS) and a publication from the National Fire Protection Association (NFPA) • MSHA argued that the Commission should apply this interpretation of “fire” and affirm the judge’s decision in result

19. Review Commission Decision • The full Commission agreed with Judge Manning that an unplanned fire occurred which was not extinguished within 30 minutes of discovery • Commissioners Jordan and Cohen wrote separately in support of the Secretary’s definition of the term “fire” • They acknowledged that it was not necessary to reach the issue of whether flames are necessary to constitute a “fire” within the meaning of §50.2(h)(6) • The Commissioners argued that Judge Manning’s determination could influence operators not to report incidents involving smoldering or smoke in the absence of flame • They believed that in an underground mine Judge Manning’s definition of “fire” would be detrimental to the safety of miners and contrary to the purpose of the Mine Act

20. Review Commission Decision • Chairman Duffy and Commissioner Young also wrote separately stating: • While it may be reasonable for the Secretary to construe the term “fire” more broadly we see no need to address in this case whether smoldering and smoke is sufficient by itself to establish a “fire” under §50.2(h)(6) • Judicial temperance and restraint dictate that cases not be over-decided. Instead, they should be resolved on the narrowest set of grounds supported by the facts

21. Review Commission Decision • “Fire” appears in numerous sections of the amended Mine Act and in more than 100 of MSHA’s regulations • We are reluctant to use this case, involving a relatively minor incident in a remote area of a surface mine, to establish the meaning of a term so prevalent in MSHA’s regulatory regime • We believe notice and comment rulemaking is a much more appropriate forum in which to do so

22. Summary of Phelps Dodge • A non binding ALJ decision stating that on a surface operation there can be smoke without fire, but once flames appear it is a fire • An evenly divided Review Commission on the definition of the term “fire” as it relates to §50.2(h)(6) • There appears to be consensus among Commissioners that it would be difficult to try and define reporting requirements for the myriad situations that could occur

23. THE END Robert Huston Beatty, Jr. Dinsmore & Shohl LLP 215 Don Knotts Blvd., Suite 310 Morgantown, WV 26501 robert.beatty@dinslaw.com www.coallaw.com Helping you Mine Safely and Productively™ 120543