FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

           WASHINGTON, D.C. 20004-1710                   

February 28, 2013

BEFORE: Jordan, Chairman; Young and Nakamura, Commissioners

DECISION

BY: Jordan, Chairman, and Nakamura, Commissioner

            In this contest proceeding arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act”), Administrative Law Judge Avram Weisberger vacated an order issued by the Department of Labor, Mine Safety and Health Administration (“MSHA”), to The American Coal Company (“American”) pursuant to section 103(k) of the Mine Act, 30 U.S.C. § 813(k). 32 FMSHRC 1387, 1391 (Sept. 2010) (ALJ). He concluded that the Secretary of Labor had failed to establish that MSHA inspectors had observed an “accident” at American’s mine before issuing the section 103(k) order. Id. We vacate the decision of the judge and remand this matter for further proceedings. 

I.

Factual and Procedural Background

            The New Future coal stockpile is located in American’s Galatia mine complex in Galatia, Illinois. Id. at 1387-1388. Coal from an underground mine is stored on the stockpile before it is moved to the preparation plant. Id. at 1387; Tr. 114-16.

            On January 19, 2010, MSHA inspectors Michael Rennie and Wendell Crick visited the New Future stockpile. 32 FMSHRC at 1387-88; Tr. 50-53. At the time, the stockpile was about 60 feet high and about 1,000 feet by 300 feet wide. 32 FMSHRC at 1387-88; Tr. 50-53. The inspectors testified that they observed five separate areas of the stockpile where coal was “smoldering” and/or “smoking.” 32 FMSHRC at 1388; Gov’t Ex. 7; Tr. 25, 27, 28, 54, 67-68. Crick testified that he observed “whitish brownish” smoke and “heat waves and . . . a whitish coat of ash around the areas that smoke was rising from.” Tr. 54. He smelled a “hot coal sulfur smell,” which he attributed to burning coal. Tr. 56, 58. He stated that the smell grew stronger when he approached the smoke. Tr. 57-58, 83-84. Crick did not observe a flame at any of the five identified areas. Tr. 92-93.

            As a result of his observations, Crick issued Order No. 8418503 pursuant to section 103(k) of the Mine Act. Gov’t Ex. 7. The order prohibited activities on the stockpile and required the operator to “obtain prior approval from an authorized representative for all actions necessary to restore operation to the affected area.” Gov’t Ex. 7; Tr. 119-20.

            Section 103(k) 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  . . . .” (emphasis added). Section 3(k) of the 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).

            Before the judge, the parties stipulated that the dispositive issue in this proceeding was whether a fire existed on the New Future stockpile on January 19, 2010. 32 FMSHRC at 1388-89; Tr. 12-13. The judge determined that sections 3(k) and 103(k) are not ambiguous and that, according to standard dictionary definitions, the word “fire” plainly requires the presence of a flame. 32 FMSHRC at 1390 (citing Webster’s Third New Int. Dictionary 854 (2002); Random House Dictionary of the English Language, unabridged 721 (2nd ed. 1987)). No witness testified that he observed a flame on the New Future stockpile on January 19. Therefore, the judge concluded that as a matter of law, there was no “fire” and thus no “accident.” Id. at 1391. Accordingly, the judge vacated the order. Id.

II.

Disposition

            The Secretary contends that the judge erred in his analysis. She alleges that section 3(k) is silent or ambiguous with regard to whether the presence of a flame is required for a fire to exist pursuant to this provision. She maintains on appeal that the judge should have deferred to her interpretation of the word “fire,” which includes “both events marked by flaming combustion and events marked by smoldering combustion that reasonably has the potential to burst into flames.” PDR at 17-18.

            American asserts that the word “fire” in section 3(k) plainly means that a flame is being produced. American further contends that the Secretary’s proffered interpretation is not reasonable because it fails to distinguish between underground mine fires and surface mine fires.

            It is well established that the threshold issue in any case involving statutory construction is “whether Congress has directly spoken to the precise question in issue.” Chevron, U.S.A., Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Twentymile Coal Co., 30 FMSHRC 736, 750 (Aug. 2008); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is clear and unambiguous, then the court “must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43; Local Union 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990).  

            In analyzing whether Congress expressed a specific intent on a particular issue, “courts utilize traditional tools of construction, including an examination of the ‘particular statutory language at issue, as well as the language and design of the statute as a whole.’” Twentymile, 30 FMSHRC at 750 (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)). The statute’s legislative history and purpose as well as related judicial precedent are also relevant to this analysis. Twentymile, 30 FMSHRC at 750-52; Emery Mining Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987). The examination to determine whether there is such a clear Congressional intent is commonly referred to as “Chevron Step I” analysis. See Coal Employment Project, 889 F.2d 1127, 1131 (D.C. Cir. 1989); Thunder Basin, 18 FMSHRC at 584. If the statute is ambiguous or silent on the point in question, a second inquiry, commonly referred to as “Chevron Step II” analysis, is required to determine whether an agency’s interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Coal Employment Project, 889 F.2d at 1131; Thunder Basin, 18 FMSHRC at 584 n.2.

            A.        The Mine Act is silent or ambiguous as to whether a “mine fire” requires the presence of a flame.

            At the outset, we note that the complete term which appears in section 3(k) of the Act is “mine fire.” We conclude that the word “mine” is not superfluous; rather it provides context for an interpretation of the word “fire.”

            In Twentymile, the Commission considered the meaning of the word “trapped” as used in section 316 of the Mine Act. 30 FMSHRC at 750. In determining the meaning of the word “trapped,” the Commission first considered the ordinary meaning of the word as set forth in a standard dictionary. However, the Commission went further and considered the context in which the term “trapped” was used in the Mine Act, as well as the relevant legislative history. Id. at 750-52. In particular, the Commission considered whether the interpretation involved “is consistent with the primary purpose of the legislation and experiences from the mine disasters that led to the legislation.” Id. at 751.

            In this case, the judge exclusively relied on two standard dictionary definitions to interpret a statutory term, instead of employing traditional tools of construction to determine whether Congress had directly addressed the issue. We conclude that the judge’s analytical approach is inconsistent with the Commission cases addressing Chevron Step I. Reference to a technical dictionary as well as the Mine Act’s legislative history and purposes indicate that the statute is silent or ambiguous regarding whether a “mine fire” requires the presence of a flame.

            A dictionary definition of a term cannot provide plain meaning when reliance on a different dictionary would provide “different or uncertain outcomes.” See Alarm Indus. Communication Comm. v. FCC, 131 F.3d 1066, 1069 (D.C. Cir. 1997) (rejecting the FCC’s exclusive reliance on Black’s Law Dictionary to interpret the word “entity”); Wolf Run Mining Co., 32 FMSHRC 1669, 1680 (Dec. 2010) (regulatory term is ambiguous where dictionary definitions are open to alternative interpretations). In the case before us, the choice of dictionary changes the result of the analysis. The Dictionary of Mining, Minerals and Related Terms (2d ed. 1997) (“DMMRT”) defines a “mine fire” as a “very dangerous occurrence [that] may arise as the result of spontaneous combustion, the ignition of timbers by gob fires, electric cable defects, or the heating and ignition of conveyor belts due to friction.” Id. at 346; Wolf Run Mining Co., 32 FMSHRC at 1685 (“The technical usage of a term is quite relevant in determining its meaning, and the DMMRT is a recognized authority for such usage.”). Absent from the technical definition is any mention as to whether a “mine fire” requires the presence of a flame. Therefore, it is apparent to us that the statutory term “mine fire” presents a puzzle “that the wooden use of a dictionary cannot solve . . . .” See Alarm Indus., 131 F.3d at 1070.

            Turning to the Act’s legislative history, we find that the issue before us was not directly addressed. Congress did note, however, that fatal mine fires had recently occurred at a salt mine, a silver mine, and a coal mine. Such mine disasters are described as “varied and diverse, both in the type of mine that [they] attack and in the way the disasters manifest themselves.” H. Rep. No. 95-312, at 3 (1977); reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 359 (1978). Therefore, at a minimum, Congress understood that “mine fires” may manifest themselves differently in different environments or scenarios.

            Importantly, the purpose of the Mine Act is to enhance safety standards “to prevent death and serious physical harm.” See 30 U.S.C. § 801(c). Construing the term “mine fire” to require a flame would undermine this basic objective. It is simply not “consistent with the primary purpose of the legislation and experiences from the mine disasters that led to the legislation.” See Twentymile, 30 FMSHRC at 751 (Commission concluded that the purposes of the MINER Act and the Mine Act required the term “trapped” to be read broadly).

            B.         The Secretary’s interpretation of the term “mine fire” is reasonable.

            The second inquiry – “a Chevron Step II” inquiry – concerns whether the agency’s interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at 834-44; Thunder Basin, 18 FMSHRC at 584 n.2. Deference is accorded to “an agency’s interpretation of the statute it is charged with administering when that interpretation is reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). When the Mine Act is silent on an issue, the Secretary’s interpretation which reasonably effectuates the health and safety goals of the Act is controlling. Sec’y of Labor ex rel. Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 115 (4th Cir. 1996).

            The Secretary interprets the term “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.” PDR at 17-18. The operator challenges the use of this interpretation because it was not introduced at the hearing before the judge. A. Br. at 16. Indeed, this interpretation is somewhat different from the interpretation the Secretary presented at the hearing. Before the judge, she articulated an interpretation that included “both events marked by flaming combustion and events marked by smoking combustion.” Sec’y’s Points of Authority at 6; Tr. 131-32, 136. 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.”

            We will consider the altered interpretation on review despite the aforementioned discrepancy. The Secretary’s interpretation remains consistent with her general argument at the hearing, namely that “one does not need the presence of flames in order to have a fire.” Tr. 132. Furthermore, it is not the first time she has proffered this interpretation to the Commission. In fact, she presented the same interpretation for the term “fire” in 30 C.F.R. § 50.2(h)(6) in Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 659 (Aug. 2008). We also note that the alteration does not burden the operator in that it requires the Secretary to prove an additional element.

            We conclude that the Secretary’s interpretation of “mine fire” is reasonable and consistent with the statute’s language, purpose, and legislative history concerning fires in mines. Regarding the language of the statute, as previously stated, the definition of “mine fire” contained in the Dictionary of Mining, Minerals and Related Terms does not require the presence of flames.

            The Secretary’s proffered interpretation is also aligned with the purposes of the Act. See Sec’y of Labor v. National Cement Co. of Cal., 573 F.3d 788, 796 (D.C. Cir. 2009) (finding that Secretary’s interpretation of the Mine Act’s definition of the word “mine” was reasonable, in part, because it was “perfectly aligned with a key objective of the Mine Act. The Secretary must act to ensure the ‘health and safety of [the mine industry’s] most precious resource the miner.’”). 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. Furthermore, a flameless smoldering mine fire is dangerous in and of itself. For instance, Inspector Crick testified that the smoldering coal could burn a “voided out area” into the stockpile, creating a hazard of a collapse for a miner operating a bulldozer on the pile. Tr. 59-63. Smoldering fires clearly present a safety hazard to miners, and therefore must fall within the parameters of a “mine fire.” See Whirlpool Corp. v. Marshall, 445 U.S. 1, 13 (1980) (a statute that is intended to protect the health and safety of individuals must be interpreted in a broad manner to actually achieve that goal); see also Sec’y of Labor ex. rel. Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1437 (D.C. Cir. 1989) (“Congress intended the Act to be liberally construed.”).

            In addition, interpreting the term “mine fire” to necessarily require a flame could lead to results that are inconsistent with the Act’s legislative history, which shows Congress’s great concern about the history of fires in the mining industry. See H. Rep. No. 95-312 at 5-6 and S. Rep. No. 95-181 at 4, reprinted in Legis. Hist. at 361-62, 592. Indeed, the House Report specifically referenced the hazard of “smoldering mine fires.” H. Rep. No. 95-312, at 13 (1977); reprinted in Legis. Hist. at 369. If we were to hold that a “mine fire” required the presence of a flame, the Secretary would be unable to issue an order after observing the very type of event which, in part, prompted Congress to pass the Mine Act.

            Moreover, this case arises in the context of section 103(k) of the Mine Act, which empowers an authorized representative of the Secretary to issue such orders as he deems appropriate to insure the safety of any person in a mine in the event of an “accident” at the mine. We find it persuasive that in a recent section 103(k) case the definition of “accident” in section 3(k) of the Mine Act was read broadly by the Eighth Circuit. In Pattison Sand Co. v. FMSHRC, 688 F.3d 507, 513 (8th Cir. 2012), the court determined that the Secretary reasonably interpreted the word “accident” to include roof falls. The court referenced Congress’s use of the word “includes” to describe the types of events which are classified as accidents, stating that “[includes] is usually a term of enlargement, and not of limitation.” Id. The court read the definition expansively, noting that “the Secretary’s interpretation of the term ‘accident’ to include events that are similar in nature to the listed events or that have a similar potential to cause death or injury is reasonable.” Id. The case presently before us differs somewhat from Pattison Sand in that the Secretary is not seeking to directly expand the definition of “accident.” Instead, she is offering a broad interpretation of one of its enumerated examples. However, the basic principle relied upon by the Eighth Circuit – that the definition should be read broadly to carry out Congress’s objective – applies in this case as well.

            Additionally, we note that the Senate Report describing section 103(k) suggests that a result of the “unpredictability of accidents in mines and the uncertainty as to the circumstances surrounding them requires that the Secretary or his authorized representative be permitted to exercise broad discretion” when issuing section 103(k) orders. S. Rep. No. 95-181 at 29; reprinted in Legis. Hist. at 617 (emphasis added). The Commission has previously recognized this broad level of discretion. See Island Creek Coal Co., 20 FMSHRC 14, 23 (Jan. 1998) (stating that “[c]ongress recognized that the Secretary must have maximum latitude to take protective measures in response to mining accidents”).

III.

Conclusion

            We conclude that the existence of a “mine fire” does not require the presence of a flame. We find the statute to be silent or ambiguous as to whether a flame is required. We further conclude that the Secretary has 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.”

            Accordingly, the decision of the judge is vacated, and the case is remanded. On remand, the judge is to apply the Secretary’s reasonable interpretation of the term “mine fire” as set forth above, to the facts of the case.  

                                                                                    /s/ Mary Lu Jordan

                                                                                    Mary Lu Jordan, Chairman

                                                                                    /s/ Patrick K. Nakamura

                                                                                    Patrick K. Nakamura, Commissioner

Young, Commissioner, concurring in part and dissenting in part:

            I agree that the decision of the judge must be vacated and remanded. However, for the reasons that follow, I would decline to adopt the definition proffered by the Secretary in this case.

            In essence, the Secretary has committed the same error as the judge below – namely, she has chosen to define “fire” instead of “mine fire.” It is a distinction with a critical difference for those who spend their working days surrounded by fuel and explosive gases and dust. Indeed, the special hazards portended by mine fires cry out for the very expertise Congress intended the Secretary to exercise in the promulgation of safety standards to keep miners from harm.

            Rather than dedicate collective agency wisdom to the task, the Secretary has decided to outsource an important definition pivotal to the application of key safety standards. The selected definition of “fire” has not been promulgated in light of the unique hazards of underground mining or the specific dangers of surface coal mining, including coal stockpiles such as the one at issue in this case. The definition was not developed by an organization involved and experienced in mining and the threats posed by mine fires. Indeed, there is no evidence that mining was considered at all by the National Fire Protection Association, upon whose interpretations she chiefly relies. See PDR at 13-15 (citing three different publications of the Association in support of definition of “fire”). 

            In sum, the Secretary’s choice to employ a definition of “fire” without considering that definition in the context of mining activities regulated under the Mine Act and the choice of Congress to use the term “mine fire,” is clearly erroneous. As the Secretary is well aware, the propensity of coal to burn, the difficulty of responding to surface coal stockpiles and the hazards posed by coal fire stockpiles vary greatly. See, e.g., Stephan, Clete E., “Coal Dust Explosion Hazards,” 3-5 (http://www.msha.gov/S&HINFO/TECHRPT/P&T/COALDUST.pdf) (discussing relevant and variable coal characteristics and stockpile conditions as contributing to risk of fire and explosion). Yet, despite having been on notice since the Commission’s 2008’s Phelps-Dodge Tyrone, Inc., decision, 30 FMSHRC 646 (Aug. 2008), that the absence of a definition of the term “mine fire” created doubts and a potential gap in anticipating and responding to such incidents, the Secretary has elected not to promulgate a definition. Instead, her attorneys have adopted a definition of “fire” which leaves unanswered too many important questions to stand as a reasoned exercise of the agency’s judgment.

            The judge’s interpretation must be reversed because it, too, focuses on a definition of “fire” that is unsuited to the regulatory purpose at hand. Flames are hardly the most dangerous aspect of a mine fire. For example, in the Aracoma disaster in January 2006, the observed conditions did not include flame but smoke and glowing embers. Report of Investigation – Fatal Underground Mine Fire – Aracoma Alma Mine #1, Jan. 19, 2006, at 15 (MSHA, 2007). Regardless of any reasonable “potential to burst into flames,” or whether flame ever materialized under the conditions in the Alma No. 1 mine, visibility was so poor in the mine, due to smoke from combustion, that some miners reported being able to see only about one foot. Id. at 11. Two miners were killed, not by flame, but by heavy smoke which first disoriented them and then poisoned them with carbon monoxide. Id. at 11-13; App. I.

It is obvious, then, that mine fires may have fatal consequences regardless of flame. The real enemies are combustion and its effects on the mining environment. In an underground mine, those effects may be compounded by the confines of the environment and the difficulty of responding to a mine emergency in the presence of thick smoke, panic and confusion. Because underground mines must import their breathable air, smoke inundations are especially deadly, as they may overwhelm ventilation systems.

            While surface mine fires may not present the same difficulties, they may afford unique challenges. As the majority has correctly observed, coal stockpiles may be subject to smoldering mine fires. Slip op. at 6. In that event, there is, as the inspector noted, a very real danger of a coal pile collapse as solid coal is consumed and reduced to ash within the pile. Tr. 54-56, 59-61. This could have disastrous consequences for miners working on or near the pile.

            This is the context in which the Secretary’s definition must be applied. It is, on the facts before us, impossible to tell the point at which a combustion event “reasonably has the potential to burst into flames.” More importantly, it is not even relevant to decide the issue. Rather, the focus should be on the point at which the combustion event in question poses a discrete safety hazard that requires urgent intervention and the involvement of the agency.

            This point may be reached at a surface coal stockpile without regard to whether flames might be reasonably likely to occur. In fact, the Secretary’s own case undermines her reliance on the definition before us. First, the Secretary’s own brief notes that smoldering is a “significant fire hazard.” PDR at 15, citing Ohlemiller, T.J., National Fire Protection Association, SFPE Handbook of Fire Protection Engineering, at 2-229 (4th ed. 2008). However, none of the materials she cites attach special significance or danger – in or outside of a mining context – to the “potential to burst into flames.” Thus, instead of focusing on indicators of conditions to hazards to miners unique to the mining context, the Secretary needlessly shifts the focus to one particular hazard, i.e., the risk of flaming combustion.

            This raises the second fallacy in her position. The definition before us is the same one urged in Phelps Dodge, 30 FMSHRC at 659 (Jordan and Cohen, concurring). While the Secretary was unable to persuade a majority of the Commission of the propriety of that definition then, at least in Phelps Dodge flaming combustion was the actual hazard occasioned by a stubborn grease fire ignited by cutting a piece of mining equipment with a torch. Id. at 647. Two Commissioners rejected then the imposition of a relevant broader definition, in part based on a reasonable concern about unintended consequences. See id. at 663 (Duffy and Young, concurring) (“Far-ranging conclusions, not necessary to the disposition of issues presented to the reviewing court in one case, may, ironically, end up constricting the court’s discretion in subsequent cases where the facts may be significantly different.”)

            The case at bar is a perfect example, as the Secretary’s own witness attested. After explaining the danger of a smoldering coal fire bursting into flames, Inspector Crick was asked:

            Q: Is there any other hazard aside from what you just explained about bursting into flames on the surface?

            A: Yes. I mean, if the coal is smoldering down in there, it can create a voided out area, and like the dozer operator, if he comes across it or something, he could fall in with the dozer down into it.

Tr. 59-60 (emphasis added). Upon further examination, the witness elaborated, explaining that the “smoldering coal can create a voided out area in the stockpile. The weight of the dozer and stuff passing over that area, it could just collapse.” Tr. 60-61 (emphasis added). Thus, in this very case, the agency’s own witness has identified a discrete safety hazard that might not be addressed by the Secretary’s own definition.

            While the eruption of flames was anticipated in Phelps Dodge, and was the particular hazard with which the agency and the operator were concerned, here the scope of the danger posed by a coal stockpile fire is broader and not dependent on the presence or potential for eruption of flames. This is to say nothing about the insufficiency of the definition in the face of the complexities and dangers of underground mine fires, as the discussion of the Aracoma disaster, above, suggests.

            Unlike a rulemaking proceeding, which would allow the broad consideration of expert testimony, input from experienced outsiders and thorough staff review of the history of mine fires and characteristics of deadly fire-related events, litigation depends on a limited set of facts. Deciding a case should in most cases decide only as much of the case as the facts require. Yet instead of urging that we determine whether the combustion in this case should have been treated as a “mine fire” due to the hazards presented this time, the agency suggests we impose a definition for all mine fires in the future.

            The proffered definition is inadequate to the task. The definition of “mine fire” has significance beyond the determination of violative conditions. It is integral to the application of provisions related to accidents, including the reporting requirements at 30 C.F.R. § 50.10 and those, relevant to the case at bar, governing response by the Secretary’s agents, pursuant to section 103(k) of the Mine Act, 30 U.S.C. § 813(k), to a mine accident or emergency.

             In both instances, a keen understanding by operators of the circumstances which constitute a mine fire is necessary to appropriate anticipatory safety measures. Operators should properly focus on conditions arising from combustion events that may threaten the health and safety of their employees. Diversion of that focus by injecting a lawyerly, imprecise “definition” centered on one type of hazard is thus counterproductive to the safety purposes of the Act.

            At argument, the solicitor urged our approval, noting that such vague definitions, with spongy terms such as “reasonably,” are “ubiquitously used in Commission case law.” Oral Arg. Tr. at 68-69. This assertion cannot withstand logical scrutiny. The term “reasonably” will necessarily be open to subjective interpretations by safety inspectors, district managers and administrative law judges. The definition is, therefore, ultimately useless to operators, who must now divine its actual meaning without the sort of clarity the regulatory development process affords. 

            We must bear in mind that operators are responsible for ensuring the safety and health of their miners every day. Operators therefore must be able to anticipate when a combustion event may transition from a nuisance to a real danger, such that it must be managed as a reportable accident, responded to as a serious emergency and dealt with by engaging MSHA.  The Secretary's definition brushes past this responsibility and leaves resolution to the aftermath, when the inevitable disagreements arise. This is not a prescription for thoughtful execution of sound public policy.

            The Commission should therefore more prudently hold that a “mine fire” does not necessarily require the presence of flame, where the combustion and smoke and other adverse effects it creates pose a significant threat to the health and safety of miners. I would, in remanding this case, direct a fact-specific analysis, limited to this case, on the question of whether the operator and the inspector should have reasonably believed a “mine fire” existed in these circumstances. 

While the judge below short-circuited the analysis, and thus never reached the necessary conclusions that would support or refute such a determination, the record reveals sufficient evidence to decide the issue on remand without resort to the term kludged by the Secretary. I therefore depart from the reasoning of my colleagues in approving of the Secretary's own short-circuit of the regulatory process. 

                                                                        /s/Michael G. Young

                                                                        Michael G. Young, Commissioner

Distribution:

Robert H. Beatty, Jr., Esq.

Dinsmore & Shohl, LLP

215 Don Knotts Blvd., Suite 310

Morgantown, WV 26501

Jerald S. Feingold, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25^th Floor

Arlington, VA 22209-3939

Administrative Law Judge Avram Weisberger (Retired)

Federal Mine Safety & Health Review Commission

1331 Pennsylvania Avenue, N. W., Suite 520N

Washington, D.C. 20004-1710