American Coal Company v. Secretary of Labor

Plain-English summary

MSHA issued a section 103(k) order after inspectors observed smoking and smoldering areas, heat waves, white ash, and a sulfur odor on American Coal's surface stockpile, then cited the operator for not reporting the event within 15 minutes. On second remand, Judge Margaret A. Miller held that the conditions were a mine fire because the smoldering coal reasonably could burst into flame when exposed to oxygen. She found that American had fair notice through the Mine Act's protective purpose, prior Commission law, and the facts visible at the stockpile. The judge denied American's attempt to add deposition testimony that was available before the original hearing. She affirmed the section 103(k) order, modified the reporting citation to moderate negligence and lost-workday gravity, and assessed a $4,000 penalty.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 802(k) and 813(k); 30 C.F.R. § 50.10
• Outcome: The accident-control order was affirmed, the reporting citation was affirmed with reduced negligence and gravity, and $4,000 was assessed.
• Key point: A mine fire can consist of smoldering combustion with a reasonable potential to ignite, even when no flame is visible.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

August 13, 2014

AMERICAN
COAL COMPANY,

Contestant,

v.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION, (MSHA),

Respondent.

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION, (MSHA),

Petitioner,

v.

AMERICAN
COAL COMPANY,

Respondent.

CONTEST
PROCEEDINGS

Docket
No. LAKE 2010-408-R X

Order
No. 8418503; 1/19/2010

Docket
No. LAKE 2010-409-R X

Citation
No. 8418504; 1/19/2010

Mine: 
New Era Mine

Mine
ID: 11-02752

CIVIL
PENALTY PROCEEDING

Docket
No. LAKE 2010-759

A.C.
No. 11-02752-219590-02

Mine:
New Era Mine

ORDER DENYING
AMERICAN COAL COMPANY’S MOTION TO SUPPLEMENT THE RECORD &

DECISION ON SECOND
REMAND

Before:                        Judge
Miller

These matters are before me upon remand
from the Federal Mine Safety and Health Review Commission.  American Coal
Co., 36 FMSHRC 882 (Apr. 2014).  The cases involve an order and citation
issued to the American Coal Company (“American”) by the Secretary of Labor,
Mine Safety and Health Administration, following an inspection of a coal
stockpile at American Coal’s New Era Mine.  The Commission remanded the cases
with the direction that the parties be allowed to file briefs and that further
proceedings, as necessary, be conducted.  Subsequently, American filed a Motion
to Supplement the Record, to which the Secretary filed a response in
opposition.  The parties then filed simultaneous briefs and a joint
stipulation.  For reasons that follow, I DENY American’s Motion to
Supplement the Record, and AFFIRM my earlier findings regarding the fact
of violation in both Order No. 8418503 and Citation No. 8418504.

I.   BACKGROUND

On January 19, 2010, MSHA inspectors
issued Order No. 8418503 to American pursuant to section 103(k) [1]
of the Act after observing what they believed to be a “mine fire” on the coal
stockpile.  At the same time, MSHA issued Citation No. 8418504 for American’s
alleged failure to timely notify MSHA of the incident in violation of 30 C.F.R.
§ 50.10.  American contested both issuances.

On July 22, 2010
Judge Avram Weisberger held an expedited hearing to address Order No. 8418503. 
At the conclusion of the hearing the parties presented oral arguments and Judge
Weisberger issued a bench decision vacating the order, which he later reduced
to writing and issued on September 28, 2010.  American Coal Co., 32
FMSHRC 1387 (Sept. 2010) (ALJ). Subsequently, the Secretary of Labor appealed
the matter to the Commission. 

On February 28,
2013, the Commission issued a decision concluding that a “mine fire” does not
require the presence of a flame.  35 FMSHRC 380, 387 (Feb. 2013). The
Commission stated that the Secretary reasonably interpreted the term “mine
fire” in section 3(k) to include “both events marked by flaming combustion and
events marked by smoldering combustion that reasonably has the potential to
burst into flames.”  Id.  As relevant to this proceeding, the Commission
noted:

Indeed, this
interpretation is somewhat different from the interpretation the Secretary
presented at the hearing. Before the judge, [he] articulated an interpretation
that included “both events marked by flaming combustion and events marked by
smoking combustion.”  . . .  In other words, the Secretary’s interpretation at
the hearing did not require that the smoking or smoldering combustion “reasonably
[have] the potential to burst into flames.”

Id. at 384-385
(citations and footnotes omitted).  Accordingly, the Commission vacated the judge’s
decision and remanded the matter for further proceedings. [2]

On January 16,
2014, I issued a Decision on Remand addressing Order No. 8418503, which is the
subject of Docket No. LAKE 2010-408-R.  American Coal Co., 36 FMSHRC 176
(Jan. 2014) (ALJ).  There, the primary issue was whether the smoldering and
smoking coal on the stockpile that the inspectors observed was a “mine fire” as
that term is used in the Mine Act and defined by the Commission.  I found that the
smoking and smoldering stockpile was a fire and, therefore, an accident had
occurred and the 103(k) order was properly issued.

On March 3,
2014, I issued a second and related decision addressing Citation No. 8418504.  American
Coal Co., 36 FMSHRC __, slip op. (Docket Nos. LAKE 2010-409-R and LAKE
2010-759) (Mar. 3, 2014) (ALJ).  In that decision, the issue was whether
American violated section 50.10 of the Secretary’s regulations, by failing to
notify MSHA of the fire on the stockpile.  Relying upon my finding in LAKE
2010-408-R that a mine fire had occurred, I found that American had failed to immediately
report the incident to MSHA in violation of section 50.10 of the Secretary’s regulations.
At the request of the parties, the negligence of the citation was reduced to
low.

American
petitioned for, and was granted, discretionary review of my decisions in the
two contest cases and the penalty case that accompanied LAKE 2010-409-R.  On
review, American argued that it should have been offered the opportunity to
file a brief on the issues raised following the Commission’s original direction
remanding Docket No. LAKE 2010-408-R.  The Commission agreed with American and noted
that “the issues that were presented to the Judge were somewhat unusual because
the Secretary had presented a modified definition of the term “mine fire” to
the Commission as compared to the definition that he proffered at the initial
hearing. 35 FMSHRC at 384-85. 36 FMSHRC 884 (Apr. 2014). Accordingly, the cases
were remanded so that the parties could brief the issues.

Subsequent to
the Commission’s decision, I asked the parties whether there was any other
evidence that the parties wanted to enter into the record by stipulation and
sought the parties’ opinion about taking further evidence in the case.  After speaking
to the parties and reviewing the record, however, I determined that a new
hearing was not appropriate because both parties had ample time to prepare and
to present evidence, including evidence on the meaning of fire and the fair
notice issue.  The parties informed the court that there was no dispute of fact
and a  hearing was not needed, but American wished to supplement the record
with additional information, and both parties wished to file a brief.[3] 
I then allowed the parties time to stipulate to any facts or items they wished
to include in the record.  The parties were not able to reach any stipulations. 
Thereafter, American filed a Motion to Supplement the current record with
testimony from depositions.  The Secretary objected to the submissions and I
deny the motion herein.  Therefore, no other testimony or evidence is included in
the original record made before Judge Weisberger but both parties have filed a
brief. 

II.   MOTION TO
SUPPLEMENT

On May 29, 2014
American filed a Motion to Supplement the Record with Designated Deposition
Testimony.   American asks the court to supplement the formal record with
designated deposition testimony of MSHA inspector Michael Rennie.  It argues
that this testimony is “necessary to address issues that were not directly
raised at the previous hearing in this matter before Judge Weisberger.”  American.
Mot. to Supp. 2.  Specifically, it argues that these deposition designations demonstrate
that the Secretary’s interpretation of fire that was raised on appeal is
unconstitutionally vague as applied to American in this case and therefore American
did not receive fair notice.[4] 
Id. 2-3.  American asserts that Inspector Rennie’s deposition testimony
shows that he had seen conditions similar to those he observed on the New
Future stockpile, a coal stockpile smoking in spots with no flames, but that he
had never before issued a Section 103(k) order for those conditions. A reasonably
prudent person familiar with the mining industry and the protective purpose of
the standard, as of the date the order was issued, therefore would not
recognize that the cited conditions constituted a “fire” or “mine fire” for
purposes of the Act and its regulations.  Id. at 5.  Moreover, American
asserts that Rennie’s deposition testimony indicates that he did not see
“smoldering combustion” and therefore, he did not use the Secretary’s new
interpretation of ‘fire’ when he and Inspector Crick issued the 103(k) Order
and reporting violation on January 19, 2010.  Given the arbitrary enforcement
of the new interpretation and the inspector’s application of a definition
broader than what was endorsed by the Commission in the original appeal,
American could not know, on January 19, 2010, what was required of it to act
accordingly.  Id. at 5-6.  As a result, American requests that it be
allowed to supplement the record with the deposition testimony of Inspector
Rennie.

On June 6, 2014
the Secretary filed a Response to American’s Motion objecting to American’s request
to supplement the record.  The Secretary argues that American stipulated at the
initial hearing that the existence of a mine fire was the issue to be decided
by the Court and if the Court found that the conditions constituted a fire,
then the order would be upheld.  The Secretary also asserts that Inspector
Rennie’s testimony is not relevant to the fair notice issue, given that he did
not issue the 103(k) order.  In any event, American did have notice of the
Secretary’s interpretation of the word “fire”.  The Secretary argues that smoke
without flame is the true issue for decision and whether smoldering or smoke
have the potential to burst into flames does not change the issue of notice to
the mine.  While the Secretary acknowledges that there is an “additional
requirement that a smoldering location have the reasonable potential to burst
into flame,” American need only have known that smoldering was sufficient for a
fire. 

American asserts
that the deposition testimony is relevant to the issue of “fair notice” and
whether “smoldering combustion” existed on the day the order was issued.  The
motion to supplement seeks to introduce deposition testimony regarding what
Rennie observed on the day the order was issued and his previous treatment of
allegedly similar conditions.  While the issue of notice is relevant based upon
the Commission’s direction on remand, American offers no reasonable
justification to now address Rennie’s deposition testimony.  Clearly the question
of statutory interpretation, as well as fair notice was at issue in the
original proceeding and the record demonstrates that the parties argued those
issues before Judge Weisberger.  Moreover, American deposed Rennie prior to the
hearing and could have elicited similar testimony at hearing.   American asked
for an expedited hearing on the issues here, made time to depose witnesses, and
presumably was prepared to defend its position before the ALJ.  While the
original hearing focused upon the limited issue of whether there was a fire, American
also raised the issue of fair notice in its argument to the Court.  American
had its opportunity to include this information in the record, and failed to do
so.  Parties are responsible for developing a complete record at hearing.  Given
the lack of any reasonable justification for why American failed to address the
deposition testimony at hearing, I decline to allow it now.  See e.g.,
Hansen Truck Stop, Inc., 26 FMSHRC 293 n. 1 (Mar. 2004) (ALJ).  In
addition, since both parties had equal opportunity to present evidence and
develop a factual record, no matter what legal arguments they chose to raise,
there is no reason to reopen the record and allow a new hearing on the matter.[5] 
 Accordingly, I DENY American’s Motion to Supplement and will not
consider the deposition testimony of Inspector Rennie, or the arguments
premised upon that testimony.

III.   DISCUSSION

On June 23, 2014
the parties filed simultaneous briefs. American, in its brief, argues first
that that the Secretary failed to meet his burden of proving that the
conditions cited constituted “smoldering combustion that reasonably has the
potential to burst into flames,” and second, that it lacked fair notice of the
Secretary’s new interpretation.  American Br. 4.  The Secretary argues that
ample evidence supports a finding of a mine fire as defined by MSHA to include
smoldering that has the reasonable potential to burst into flame, and that the
mine did receive fair notice of MSHA’s interpretation.  After careful
consideration of all the evidence in the record, finding no conflict in the
facts presented at hearing, I find that the condition of the coal stockpile
constituted a “mine fire.”

Interpretation
of mine fire. 
American
contends that, on remand, the court should defer to the Secretary’s prior interpretation
of what constitutes “smoldering” or “smoldering combustion” as evidenced by
articles and treatises submitted by the Secretary.   American Br. 4.   Those
articles and treatises, for the most part, state that smoldering combustion
requires the presence of oxygen and is evidenced by heat generation, some form
of ‘glowing’ or ‘illumination,’ visible smoke, and ‘toxic gasses’ such as
carbon monoxide that give way to complex chemical reactions. American Br. 4-5. 
Therefore, American argues, the Secretary must show evidence of some glowing or
illumination in order to show that there was a fire.

American argues
that based upon the same interpretive material, self-heating of coal occurs
along a spectrum from low temperature weathering, to non-combustion oxidation,
to the point of spontaneous ignition, to smoldering combustion, and then
possibly to flaming combustion.  With that spectrum in mind, American argues
that heat, light colored smoke, and noxious gases can be emitted even in the
absence of ignition or combustion.   Given the lack of any evidence regarding
the observation of a flame, illuminated or glowing material, and the failure of
the MSHA inspectors to further examine the smoking areas, analyze the purported
white ash, or take any carbon monoxide or temperature readings, the Secretary
failed to establish that flaming or smoldering combustion occurred.  American
contends that the testimonial evidence relied upon by the court on remand to find
the existence of a fire: the sulfur-like smell, whitish-brownish smoke, heat
waves, and white ash, can all be explained by non-combustion self-heating coal phenomena
that do not rise to the level of a “mine fire.”  Id. at 8-10. 

In the first
decision on remand, I relied upon the facts from the transcript as presented by
each of the witnesses who testified, including MSHA supervisor Rennie, mine
inspector Crick, and American’s witness, Michael Smith.  The transcript was
short but each party had the opportunity to present its evidence and to cross
examine all witnesses.  In that previous decision I explained that Rennie, who
has been a mine inspector for 20 years, observed the five areas described as
smoldering and took photographs, which are included in the file as exhibits.  Inspector
Crick, while a fairly new inspector, had more than 20 years of mining
experience and once owned a safety company where he trained miners in the area
of stock pile safety.  Crick’s testimony included a description of the stockpile
and what he observed at the time he issued the order.  He explained that he
noted a sulfur smell, and that he observed smoking and smoldering material from
about 5 feet away.  He described the smoke as whitish and brownish with visible
heat waves and he observed white ash around the area. American’s only witness,
Michael Smith, who was a member of its safety department testified on behalf of
the mine.  He observed the same areas as the inspectors and also did not see
any flames. He had fire brigade training once each quarter while at the mine,
and he was never called to fight a fire without a flame.  (Tr. 106-107).  Smith
described the workings of the Galacia complex and the reasons for having
stockpiles of coal outside the mine.   He says he was within 60 to70 feet of
the smoking and smoldering but did not see any flame and his carbon monoxide
detector did not alarm.  When asked if he saw white ash, he said he did not,
but saw a grayish rock that comes out with the coal.  His opinion was that
there was no fire.  He did not comment on whether it was windy or that if the
smoking and smoldering coal came into contact with oxygen it would ignite. 

While I
understand American’s argument that the conditions observed, the smoldering,
white ash, heat waves and sulfur smell could lead to results other than
combustion and fire, there is no evidence in the record that is the case.  Instead,
the mine inspector’s unrefuted testimony is that it was windy on the day of the
inspection and that the smoldering areas, when exposed to oxygen could
reasonably lead to combustion.  While the inspectors did not specifically
testify that they observed some kind of illumination, the testimony they
presented is sufficient to suggest a fire existed at the mine. 

American next argues
on this second remand that Inspector Crick did not rely upon the Secretary’s
new interpretation, and instead relied upon his personal definition of ‘fire’
and determined that when “[y]ou see smoke, there’s fire.”  American Br. 11. Though
the inspector claimed to have relied upon his “life experience and on his
experience as a volunteer firefighter,” American points out that the trial
judge did not accord much weight to the inspector’s opinions. American argues
that, since the trial judge was the only judge to preside over and observe
Inspector Crick’s testimony, this court should defer to that credibility
determination.  American Br. 11. I note that in Judge Weisberger’s discussion
of deference in the first decision, he writes that he is aware of no case in
which the position of the Secretary’s witness is a basis for deference.  In
doing so, in a footnote, he mentions that he does not give much weight to the
Secretary’s witness, who is presumably Crick, because while Crick has extensive
experience as a firefighter, there is no evidence that the experience relates
to coal fires.  Further, he says, Crick was not established as an expert.  American
Coal Co., 32 FMSHRC 1387 (Sept. 2010) (ALJ), n. 5.   I disagree with
American’s interpretation of Judge Weisberger’s footnote and instead I find
that the fact that an ALJ gave less weight to Crick’s opinion when discussing
the issue of deference does not translate into a credibility finding nor does
it support a finding that Crick’s lay opinion should be disregarded.  Crick
described in detail what he observed and how he interpreted it based upon his
experience and particularly his experience as a firefighter.  While I agree
that Crick was not an expert, neither was any other witness at the hearing.  Each
witness relied upon his experience to translate what he observed into his
opinion.  For the MSHA supervisor and MSHA inspector, it translated into a
fire, but not so for the safety supervisor at the mine.  I relied upon the
facts presented by each witness in my earlier decision and do so in this one.

American also argues
that the Secretary has not offered an interpretation of, nor provided any
credible evidence regarding, the “reasonable potential to burst into flames”
element endorsed by the Commission.  American Br. 12-13.  American asserts this
element was not raised before or during the hearing, the Secretary did not
directly address it, and American was not given the chance to present evidence
to rebut it, or cross-examine the Secretary’s witnesses regarding their
testimony upon it.  Moreover, American argues, the only evidence that could be
construed to address this element was the inspector’s testimony that if oxygen
or air hit the cited areas, they could burst into flame at any time.  I find
this argument also to be without merit.  American had an opportunity to call
any and all witnesses to discuss combustion and the potential of the coal, as
observed, to lead to a fire, or a flame.  The Secretary was the only party to
produce any evidence of what causes coal to burst into flames and if American
failed to cross examine on that testimony, or rebut it, then it did so by
choice.   The transcript reflects that both parties were focused upon the issue
of having a flame to define a fire at hearing.  American had an opportunity to
present evidence about what constitutes a fire and how the smoking and
smoldering material can be defined.  The only evidence in the record on that
issue, however, is Crick’s testimony that it was possible on that windy day for
oxygen to mix with the smoldering areas and burst into flame.  While the
evidence is not overwhelming on either side, and both parties could have done a
much more thorough job of presenting evidence in the case, the Secretary did
meet his basic burden of proof and American provided no rebuttal.

American, while
citing a source relied upon by the Secretary during the initial appeal,[6]
also argues that “propagation and spreading of smoldering combustion as well as
how smoldering combustion transitions to flaming combustion are complex
technical issues involving a number of factors.”  Id. at 14.  American
argues that the Secretary presented virtually no evidence on these issues.  Moreover,
the source cited by the Secretary indicates that when smoldering combustion occurs
below the surface of a stockpile and it begins migrating toward the surface, it
does not have the potential to burst into flames until it reaches the surface, which
can be a slow process depending up on the fuel layer above the smoldering
material.  Here, there is no evidence that the alleged smoldering areas were on
the surface and the inspectors took no steps to determine if smoldering occurred
on the surface or below the surface.  American Br. 16.  American is correct
that many documents were submitted in this case with little or no explanation
and that a number of complex issues regarding combustion are noticeably absent
from the record.   However, the record reflects that both Crick and Rennie
agree that the smoldering, when mixed with oxygen, would burst into flames.  Again,
American did not refute that finding in its cross examination or in its case in
chief. 

Applying the
Secretary’s interpretation, I find that the area observed and subsequently
cited constitutes a “mine fire” based upon the observation of smoke, ash, and
heat as well as the smell of sulfur.  Both Crick and Rennie testified that they
observed smoking and smoldering areas on the stockpile.  Additionally, Crick
testified that he observed “heat waves” and white ash in the smoking and
smoldering areas.  Further, he explained that if oxygen or air hit those areas,
they “could burst into flame at any time.”  (Tr. 59).  Smith, the mine’s sole
witness, did not testify to the existence of smoke or smoldering material, and
instead offered that he did not see flames, “hot coals,” or white ash.  While
Smith testified that he was only able to get within 60 to 70 feet of the
smoldering areas, Crick indicated that he was able to travel within 5 feet of
at least one of the areas.  Given the testimony as a whole, I find that smoke,
ash, and smoldering areas existed on the New Future Stockpile and those areas
had the potential to burst into flame at any time; therefore there was a fire
on the stockpile, which in turn is an accident as described by the statute.  Given
the testimony of the witnesses at hearing and accepting all testimony as true, I
reaffirm my finding that “smoke, ash, and smoldering areas existed on the New
Future Stockpile and those areas had the potential to burst into flame at any
time, and therefore there was a fire on the stockpile, which in turn is an
accident as described by the statute.” American Coal Co., 36 FMSHRC 176,
179 (Jan. 2014) (ALJ).

Fair Notice
Argument. 
 American
asserts that a reasonably prudent person familiar with the mining industry and
the protective purpose of Section 3(k) of the Act would not have recognized
that “fire” or “mine fire,” as used in Section 3(k), could include “smoldering
combustion that reasonably has the potential to burst into flames.”  American
Br. 18-19.  American points to the deposition testimony of Inspector Rennie, in
which he commented that he previously saw similar conditions as those observed
on the stockpile, but never issued a 103(k) order for those conditions. Rennie’s
testimony is not admitted in this proceeding, but even if it were, I find that American
had adequate notice. 

American argues
that, even in the absence of Rennie’s testimony, the Secretary’s interpretation
was never communicated to American prior to the issuance of the 103(k) order.  The
order itself mentions smoking and white colored ash, but not the reasonable
potential to burst into flames.  American is unaware of any prior history of a 103(k)
order or any other available guidance from the Secretary that existed as of
January 19, 2010 and provided advance notice that the Secretary’s inspectors
might find smoldering or smoking areas on a surface stockpile devoid of flames
or glowing embers to constitute a fire and hence to be an ‘accident’ under Section
3(k) of the Mine Act.  Further, American argues that the Secretary never
presented, before or during the hearing of this matter, the altered interpretation
that was upheld by the Commission and requiring the Secretary to prove the
additional element that smoldering material has the reasonable potential to
burst into flames. This interpretation was not raised at trial and American was
not given an opportunity to address this additional element.   Finally, the
Commission’s decision in Phelps Dodge Tyrone, 30 FMSHRC 646
(Aug. 2008),  does not provide fair warning to mine operators that their surface
stockpiles are subject to 103(k) orders absent a flaming fire.

The Secretary,
in his brief, argues that American had notice of the Secretary’s interpretation
that a fire included smoldering combustion that reasonably has the potential to
burst into flames.  Sec’y Br. 2.  The Secretary states that (1) American
stipulated at hearing that the existence of a fire was the singular issue in
the case and that a determination as to whether a fire existed would dispose of
the case, (2) the Secretary’s interpretation of the standard at hearing gave
American notice that MSHA considered smoldering combustion to be ‘fire’ without
the presence of flames,  (3) that the issue of whether the smoldering locations
had the potential to burst into flames was tried at the original hearing, and
(4) that the trial record contains evidence regarding the conditions observed:
that is smoke, sulfur odor, white ash, and heat waves, such that the mine
operator should reasonably have believed that a mine fire existed on New Future
Stockpile.

The Commission
has stated that “due process considerations preclude the adoption of an
agency’s interpretation which ‘fails to give fair warning of the conduct it
prohibits or requires.’”  Lafarge North America, 35 FMSHRC 3497, 3500
(Dec. 2013) (citing Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156
(D.C. Cir. 1986)).  Fair notice is provided when a party has “actual notice of
MSHA’s interpretation . . . prior to enforcement . . . against the party.”  Id.
(citing Consolidation Coal Co., 18 FMSHRC 1903, 1907 (Nov. 1996)).  In
the absence of actual notice, the Commission has applied the “reasonably
prudent person” test, in which “the violative condition is appropriately measured
against the standard of whether a reasonably prudent person familiar with the
factual circumstances surrounding the allegedly hazardous condition, including
any facts peculiar to the mining industry, would recognize a hazard warranting
corrective action within the purview of the applicable regulation.”  Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982).  The Commission has
explained that “‘the appropriate test is not whether the operator had explicit prior
notice of a specific prohibition or requirement,’ but whether a reasonably
prudent person, familiar with the protective purposes of the standard, would
have ascertained the specific prohibition of the standard and concluded that a
hazard existed in that ‘particular factual setting[.]’”  Lafarge North
America, 35 FMSHRC at 3501 (citing Ideal Cement Co., 12 FMSHRC 2409,
2415-416 (Nov. 1990).

There is no evidence
in the record that the Secretary articulated his interpretation introduced during
review before the Commission directly to American prior to the issuance of the
103(k) order.  However, I find that the purpose of the Act, Congress’
recognition of the dangers of smoldering flameless fires, and prior Commission
case law involving an identical interpretation of the term “fire” are all
things that a reasonably prudent person familiar with the mining industry would
have been aware of and considered to determine that the conditions on the
stockpile amounted to a hazard that warranted corrective action within the
purview of the cited provision of the Act.

Section 103(k)
of the Act provides, in pertinent part, that “[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). The Act defines the word “accident” as “includ[ing] 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).        

In the
Commission’s original decision, relying upon the legislative history of the
Act, it stated that “Congress understood that ‘mine fires’ may manifest
themselves differently in different environments or scenarios.”  American
Coal Co., 35 FMSHRC 380, 383-384 (Feb. 2013).  Further, it stated that “the
purpose of the Mine Act is to enhance safety standards ‘to prevent death and
serious physical harm.’”  Id. (citing 30 U.S.C. § 801(c)).  In upholding
the Secretary’s interpretation of the term “mine fire,” the Commission noted
that the “proffered interpretation [was] also aligned with the purposes of the
Act” and agreed that

“Time is of the
essence when dealing with a fire, and requiring an inspector who observes
smoldering coal to wait to observe a flame before evacuating an area may cause
a delay that is the difference between life and death.” 35 FMSHRC at 385. 

Mine operators
are aware of the broad nature in which safety standards are to be interpreted
and the dangers associated with mine fires.  Here, the Secretary’s
interpretation, while broad, is certainly one a reasonably prudent person
familiar with the dangers of fire and the Act’s purpose of enhancing safety
would be aware of and expect.  The testimony of the MSHA inspectors and that of
the mine safety manager indicate that fire is a serious and ever-present hazard
in coal mining.  The fact that the stock pile was smoking, smoldering, smelled
of sulfur and exhibited waves of heat would all lead a reasonably prudent
person to understand that flames were imminent and that the conditions as
described met the definition of a mine fire.  While the Secretary did not
explicitly set forth the fact that the smoldering must have the reasonable
potential to burst into flames, I find that a reasonably prudent person would
understand the potential for fire and that the smoldering in the manner
observed by the inspectors was considered a fire.   

American also argues
that the Commission’s decision in Phelps Dodge Tyrone, Inc., does not
provide notice of the Secretary’s interpretation.  30 FMSHRC 646 (Aug. 2008).   Specifically,
American asserts that Phelps Dodge Tyrone “involved the term ‘fire’ as
used in 30 C.F.R. § 50.2(h)(6) and as the Commission recently recognized,
‘Section 50.2 plainly limits its application to terms ‘used in this part,’ that
is Part 50 of MSHA’s regulations (the reporting regulations).”  American Br. 21
(citing Revelation Energy, LLC, 35 FMSHRC 3339 (Nov. 20, 2013)).  For
reasons that follow, I disagree and find that Phelps Dodge Tyrone did
provided notice of the Secretary’s interpretation.

In Phelps
Dodge Tyrone the mine operator petitioned for review of a Commission
judge’s decision upholding a violation of section 50.10 of the Secretary’s
regulations.[7] 
There, the Secretary alleged that an “accident,” as defined by the Section
50.2(h)(6), [8] occurred
due to an “unplanned fire.”  Id. at 651.  A Commission judge, relying upon
a dictionary definition of “fire,” decided that a flame must be present for
there to be a fire, and that once a flame is present, the mine operator is
under an obligation to comply with section 50.10 and notify MSHA.  Id.
at 650. There, the Secretary put forth an interpretation of “fire” before the
Commission which is identical to that which he advanced in the instant matter.[9] 
Id. at 659. 

Here the
Secretary has set forth an interpretation of “fire” identical to that which was
set forth in Phelps Dodge Tyrone.  While American asserts that the
interpretation in Phelps Dodge Tyrone is limited to part 50 of the
Secretary’s regulations, I disagree.  At least one Commission judge addressing
a violation of a standard not under part 50 of the Secretary’s regulations has
interpreted the Phelps Dodge Tyrone decision to mean that smoldering
coal fines are included in the definition of “fire.”  See Powder River Coal,
LLC, 31 FMSHRC 243, 254 (Feb. 2009) (ALJ).  Moreover, given the statements of
the Commission in the original decision on review and the majority’s
acknowledgement that the instant matter was “not the first time [the Secretary]
has proffered this interpretation to the Commission,” I find that Phelps
Dodge Tyrone provided notice of the Secretary’s interpretation. 

While American
argues that the Secretary did not present his new interpretation before or
during the hearing of this matter, I find that notice of that interpretation
was provided, as discussed above, by means of the Mine Act, Congress’
recognition of the dangers of smoldering flameless fires, and the Commission’s
decision in Phelps Dodge Tyrone.   American argues that the additional element
that smoldering material has the “reasonable potential to burst into flames”
was not raised at trial and American was not given a chance to present rebuttal
evidence.  However American was given every opportunity to present evidence
about smoldering and combustion relevant to the case and the fact the issue was
not raised at hearing does not change my view that the mine received fair
notice of the meaning of fire prior to being issued the order in this case.  The
reasonably prudent person test must be based upon conclusions drawn by an
objective observer with knowledge of the relevant facts. It follows that the
facts to be considered must be those which were reasonably ascertainable prior
to the alleged violation. Moreover, the test must be applied based upon the
totality of the factual circumstances involved, not just those which tend to
favor one party or the other.  U.S. Steel Mining Co., 27 FMSHRC 435, 439
(May 2005) (citations omitted).  Therefore, I find that the Secretary provided American
with fair notice of his interpretation.

IV.   CITATION
8418504

On June 23, 2014
the parties filed a joint stipulation regarding Citation No. 8418504.  The
parties stipulate that, if I vacate Order No. 8418503, then Citation No.
8418504 should also be vacated.  Jt. Stip. ¶ 7.  Conversely, they stipulate
that, if I find that a “‘fire’ or ‘mine fire’ occurred on the New Future
stockpile” then the violation of section 50.10, as alleged in Citation No.
8418504, should be affirmed.  Id.  The parties agree that, if Citation
No. 8418504 is affirmed, the negligence of the citation should be reduced from
“high” to “moderate” based upon American’s claimed good faith belief that it
had no reporting obligation because it did not believe there was a mine fire at
the time the order and citation were written.  The parties also agree that, if
Citation No. 8418504 is affirmed, the violation will remain S&S, but that
the degree of injury should be modified to “lost workdays or restricted duty”
since although the hazard would result in injuries of a reasonably serious
nature, those injuries would not be fatal.  Id. at ¶ 7(f).  Further, the
parties provide a stipulation as to the remaining penalty factors and agree
that $4,000.00 is an appropriate penalty for this violation, which was
originally assessed at $8,893.00. Id. at ¶ 7(j). 

Given my
findings with regard to Order No. 8418503, I AFFIRM Citation No. 8418504
as modified by the stipulations of the parties.  Citation No. 8418504 is
modified to “lost workdays or restricted duty” and “moderate” negligence.  I
assess a penalty of $4,000.00.

V.   ORDER

American’s
Motion to Supplement the Record is DENIED.  Consistent with the
Commission's decision and direction on remand and based upon the record
evidence, I find that the Secretary established that Order No. 8418503 was
validly issued.  Order No. 8418503 is hereby AFFIRMED and contest
proceeding LAKE 2010-408-R X is DISMISSED.  Further, Citation No.
8418504 is MODIFIED to “lost workdays or restricted duty” and “moderate”
negligence.  American Coal Company is hereby ORDERED to pay the
Secretary of Labor the sum of $4,000.00 within 30 days of the date of this
decision.  Upon receipt of payment, contest proceeding LAKE 2010-409-R X is DISMISSED.

/s/
Margaret A. Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Lauren
Polk, Office of the Solicitor, U.S. Dept. of Labor, 1999 Broadway, Suite 800,
Denver CO 80202-5708

Barbara
Villalobos, Office of the Solicitor, U.S. Dept. of Labor,

230
South Dearborn St., 8th Floor, Chicago, IL 60604

Jason
Hardin, Fabian & Clendenin, 215 South State St., Suite 1200, Salt Lake
City, Utah 84111-2323

[1] Section 103(k) states
that “[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).

[2] Judge
Weisberger retired while the case was on review before the Commission.  The
cases were then reassigned to me for a decision after remand.

[3] American, in
its Motion to Supplement the Record, states that “it is willing to forego
requesting a new evidentiary hearing if these deposition designations are
admitted into the formal record.”  American Mot. to Supp. 2 n. 1.

[4] American points
to the difference in the Secretary’s interpretation of “mine fire” that he put
forth before the Commission, which included “both events marked by flaming
combustion and events marked by smoldering combustion that reasonably has
the potential to burst into flames[,]” from the interpretation the
Secretary argued before the judge, which included “both events marked by
flaming combustion and events marked by smoking combustion.” American Mot. to
Supp. 2.

[5]
Finally,
even if Rennie’s testimony were added to the record, it would not change my
decision in this case.  Rennie testified to what he observed and his deposition
testimony does not differ significantly from his testimony at hearing.  In
addition, a fair notice argument requires much greater evidence than the
general testimony of one inspector who may or may not have seen these same
conditions and failed to issue a citation. 

[6] American cites
T.J. Ohlemiller, National Fire Protection Association, SFPE Handbook of Fire
Protection Engineering, §2, Chap. 9, “Smoldering Combustion,” at 2-200,
2-201 to 2-207 (3d ed. 2002).

[7] Section 50.10
provides in pertinent part that an “operator shall immediately contact MSHA at
once without delay and within 15 minutes . . . once the operator knows or
should know that an accident has occurred.”  30 C.F.R. § 50.10.

[8] Section
50.2(h)(6) provides that “Accident means: . . . 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]
A split
Commission did not address the question of whether the mine had notice of the
Secretary’s interpretation.  Commissioners Jordan and Cohen, however, agreed
that the Secretary’s interpretation was reasonable while Commissioners Duffy
and Young declined to address the Secretary’s interpretation and instead
advocated that the case should be decided on other, narrower grounds.  Id.
at 660, 663.  Notably, Commissioners Duffy and Young believed that section
50.2(h)(6)’s use of the term ‘fire’ is hardly unique in the Mine Act and its
regulations.  ‘Fire’ is found in numerous sections of the amended Mine Act and
in more than 100 of MSHA’s Mine Act Regulations.”  Id. at 664.