morning or reserve two minutes for bottle may please the court my name is jason harden i represent the petitioner the american coal company this case concerns the definition of fire as used in the definition of accident in mines when an accident quote is occurring it's undisputed that congress enacted section one of the three k to respond to accidents so the question is what was the accident here smoldering given the circumstances perhaps an underground situation to a point face could be an accident a fire but not a quark yeah and that's what this case is about why isn't the mine fire and i thought i found your argument a little bit odd maybe i didn't understand that we can't look at the word i know you can i mean there are i mean there's nothing you can look at the word mine and i go so just bigger point is that the secretary didn't really have a raise of until this appeal but it's the term fire as used in the miner act in the secretary this that with the and i would say the this section one of the section three page does say the phrase mind fire but the secretary here has chosen to interpret the phrase fire and if you go back and look at all of the statements before the truth of the administrative law judge and on the initial appeal before the commission the secretary interpreted the word fire and in fact even there briefing here they admit that a mind fire is a fire in a mine and mine is defined specifically in section three of the mine and it's also defined there so it's a fire in  there's smoke there's fire and the question is if that's what the secretary interpretation was then why didn't they say that they did and that's because that where there's smoke there's not always fire where there's flames there is always fire there is a thing called fact one of the references in our doom goes back almost one hundred years talking about the self heating of coal even then i think as long as coal has been mined and put in a pile people have known that it has the ability to self heat now that doesn't mean it's always going to catch on fire in fact even in your own backyard when you like you know charcoal which has would have dealt with burned you often have to put on a lighter fluid as you make it burn it off and does it but it does have the ability to self heat and i think as the secretary is materials and  materials made clear it can often self heat for months without ever combusting into smouldering or into flaming combustion and it can still them that smoke in those circumstances i know that you've identified a number he tells a little bit more about what's going on top of each other it oftentimes consult heat and i'm not a i'm not a chemist i can't tell you what the process is but i think it's known in that study that organic materials including coal which are piled up can it times selfie and then the question becomes in this case is does that rise to the level of a fire for purposes of an accident as applied to section one of three k of the minor and i think this case you can't lou you can't forget about where this was this was a surface coal stockpile it wasn't underground it poses a different hazard than smoldering or for you combustion or self heating of coal underground this is there are thousands of stockpiles on the surface around the country and i am told is unaware of any situation the critical is a moment twenty combusts so so critical heating means the heating before combustion and so the point that i have the point here is that there's really three stages of the self heating of coal to a fire one is pretty combustion that's what so critical the next would be a combust and it could be smoldering and then the next would be one that is if and when the smoldering erupts into flames and again the question is should the secretary be able to read the definition of fire to include all of these activities smoldering yes mines well i would say again where there's flames there's always fire where there's smoke there could be part and the point of the unambiguous term fire as defined as this is the supr said should be defined according to its plain ordinary contemporary meaning at the time of the passage of the miner act is flames or some other visible light emitted along with heat and you don't need to even get to all these things and compassed this congress didn't they could have defined fire in the statute and they didn't they could have directed the secretary to rule make on the definition of fire and they didn't and for thirty plus years this existed the word fire existed over twenty times in the mind and over one hundred times in the secretary's regulation and was applied just fine there and cold is not asking for a change for a change in the way things have been in force they're not asking to decrease minor safety and help this secretary has  briefing all of those cases actually the issue before the court and all of those instances was not whether smoldering was part of the definition of fire and in fact all of those cases dealt with flaming combustion at some point so so it was there was  present so they may have made an offhand remark about that but that doesn't mean that they have court actually addressed the question of the cases cited in our briefs however by contrast did in fact deal with the issue is what is included in the term fire and in that case there were like cla which makes a simple demarcation for the point of an accident i mean i think i think the most telling one of the most telling pieces of evidence is inspector cricks testimony he believed that the hazard was a minor falling into a void or a fire which is basically what the accident would have been in other words there was no fire and no accident occurring but it could have and that's inappropriate person section one of pre paid it's more appropriate for  be true but if you read his entire testimony he uses the word could several times i don't think he was bothered by what was happening he was bothered by what could have and that there are more there are more arrows in the secretary's unfortunate quiver than just the most extreme section one of the three take control compassion at this point if there was combustion a smoldering might be the result correct but that is possible ok and so i assume that your argument is even if it was smoldering it wouldn't be a fire well that i feel well and that's an interesting question is it good is the emission of light and heat is that a fire and i think that the most easiest definition and that's been applied for thirty years is that when there's flames there's fire and so could sometimes of the events of smoldering be classified as a choir maybe but i don't think that falls within the ordinary common meaning of the term fire i think it might it would be different underground and smoldering might be quite dangerous and so that's that's why i'm trying to understand i think the second to the best the most interesting point of this is if you look at the secretary's own definition the secretary is where do you draw the line well that's that then that's my question because if we if if both of them could be then why would we draw the line on the other side  because you can't have different definitions right well the reason that i think that you can do that makes sense is because the common meaning usually invokes flames with the point the point i think i made talking to judge griffith earlier is that if you if you say that fire requires flames you're not decreasing minor safety and health we're not asking for that and want to argue that absolutely the mine act is there to protect minors from from fire if we're asking for it to be applied consistently as it has been for thirty years and if there is a small ring a vent that poses or causes an accident then that that given the circumstances would fall under a similar event under section three k as the this i don't believe this court  redress issue but i believe another circuit court addressed the issue of whether accident includes items other than those listed in section three k and found that it could include similar events of a similar nature i would so so your argument is that you fire would always require flying had them how you could have them in an accident that involves something less than that's true in fact i would even say that it's possible not on this situation but it's possible that in a situation where you talked about with with pretty combustion where it's not even smoldering but it's self heating if that was occurring underground in a confined space in a meeting carbon dioxide and at least my thinking is you chevron one argument is is we can give a better chevron to our human one of the lines that you just me i mean what is it seems as if the commission has acknowledged that there are some types of smoldering fire that are not thought i would say this is that i believe that that raises a good point and that was the point of commissioner young and dissent before the commission that mine operators and inspectors need to be able to anticipate and predict when a nuisance or a violation might transition to a real danger or has transitioned to a real danger and then the secretaries and the secretaries clichy stared in your view not workable reason would be reasonably probable to the last time occurred i mean it was on the surface stockpile where it was a living smoke from the cell heating of coal that occurs every day all across the surface of the mine all across the nation and so if you allow and respond to it but we don't necessarily have to go all the way i want to second what you don't but you could if the if that protective of the question is first i don't think there was evidence showing that it was smoldering occurring it could have been pretty combustion i mean there was no life and carbon monoxide detected and so the question is what what how do you prove smoldering i mean all of the technical treatises sided by the by the secretary which came after clashes with my neck they all require some kind of glowing or incandescence from the smoldering so your view is  how i mean often when there was smoldering it would be under i mean you know you had these peak fires that go on for years if you open it up you might see some you might see light by it who wants to require that inspectors go on the pile that as well makes it on a daily basis they're monitoring their stockpile every day and when they see smoke come up they go in they spread it out i mean this happens all over this happens in utilities that have a coal mines it happens that stockpiles along the train rail i mean this happens every day and what the what the secretary if you get new equipment they had to reduce the policy and the order stayed in place first six months well six months until the judge vacated to follow up on that because i have not i'm not sure that i understand in your view is which means that the conditions could reasonably be expected to cause death or serious bodily harm before the condition can be abated so they issue it they can withdraw everyone from the site and at that point the orders in place but when the when the danger is passed the order is removed a section one of the three k stays in place until the secretary decides to lift it or there's been an abuse of the secretary's discretion and again here to stay in place six months had it been an imminent danger order that they probably would be lifted the next day or maybe a day after that or maybe even that later that day i don't believe the conditions warrant an imminent danger order but if they had that's what would have happened they would have spread the pile out removed her body it would have been it will have been looked at sooner of the just one last point and that is that i want to finish respond to your question judge greer of the chevron step two is that i think there's an argument we at the secretary's interpretation could be construed as less safety promoting because i'm sorry as less safety promoting i think it's really in big us some of it difficult to apply but as we discussed i discussed earlier with judge brown where do you draw the line the secretary's admitted that some of the events covered aren't of smoldering or not fire and some are the question is where's the line i mean and the secretar this vague well it's reasonable to see inquiries throughout the law that can't be the problem right i mean that's true but i think commissioner young hit the nail on the head in his dissent in the commission decision when he talked about the real world application of this definition it's just is not required for there to be a far second if the word five is in particular this is the secretary's interpretation a reasonable and safe to promoting interpretation that was properly given deference by the commission and should likewise be given difference by this court we would ask that the court bear month rather discussion today that the minor is a remedial safety and health statute that is directed to prevent things going wrong before they go wrong and not to address them after the fact that it has to be an accident right has to be an accident occurring that's korea so action occurring that sounds like it's not before the fact to mind in front of the word fire in section three can in defining acts and it is a very important point there was no point in this litigation that anyone questioned whether we were talking about ground but that it is very important because just like certain concerns at ten forest fires that are unique to forest fires and circumstance of the forest fires similarly mining fires have circumstances that tens of them that are special because they are mining fires so it was not being used in the general sense we also know that the word fire was the ambiguous as to whether flame was required because when congress and the act of the mind and thereby extended the protections of the old call act which only applied to all minds to almost things in one nine hundred seventy seven the legislative history at that least ambiguous as to the meaning of mind fire i have some concerns about the way the secretary has come up with the reasonable interpretation how how can the secretary distinguish between smoldering that probably itself is insufficient yes to be certain type of smoldering before we will issue an order that's right yeah that's right and this does not work so how does how do you distinguish that how does how is a mine operator supposed to know that managers are supposed to be very well versed in the running of their moans and if you have a cold bottles you understand the fire is a hazard on a cold so really if you want an underground mine you certainly realize the fire is one of the hazards you have to address but each situation has to be addressed on its own particular circumstances and as you judge griffith noted the reasonable man standard is not only ubiquitous throughout administrative law it small pile of coal in that parking lot and some smoke is coming off that little pile but well reasoned judgment would be that it with in effect extinguish itself it's a very calm day there's no wind it would probably end up extinguishing itself before it would ever ignite into flames and that would be a reasoned judgment the reason we did that is because mine inspectors and mine examiners those that work for the money operators have more important things to do than to worry about these relatively rare very minor incidents were smoke is coming but it's fairly clear it's not going to develop into anything t somehow out of risk because they do not have the ability to exercise this type of judgment the answer is very simple just attend to all smoldering fires so in effect it's it's exactly as mr hart has described it to new line will be where there's smoke there's fire that's not true i'm just saying if they feel that they don't have the ability to make a reasoned judgment remember if they disagree with then specter they can do what they did here they can take it before and administrative law judge put on the facts and if they're correct the k order will be posh circle around here they did that and then they still did win that argument in the you know that's correct because in this particular instance they were incorrect based on the  country every day i don't know whether it does or not the keep in mind the only time a k orders issued is when the inspector sees it and the inspector is not very very often we leave it to the operators to take care of these problems that's the whole point of citation that went with this order for failure to report it under port fifty and the k order itself is to address something that the operator had not addressed themselves had they attended to this and put out the effect for six months but i don't i don't know the details but i'm guessing that it was not in effect a closure order not allowing them to work on that coal pile for six months and i do believe even though it's not in the record that there were a proposed history here for this event one that called pile which is not relevant to deciding this case but may be related to answering your question because that hayward may have remained in effect because of other things going on in that whole pile after the sense so it isn't necessarily closure and some kind of supervisory nothing can be closure and then it can be modified to something else we're going to allow you now to open it and you just pull a reference to th that unlike an imminent danger order and this was not an imminent danger and should not have gotten into a danger but unlike an imminent danger or direct mail order is very flexible it gives the secretary through his inspectors the right to tailor the remedy and then to change it as he sees fit and the kinds of like what would be a like a low level kind of remedy that might well the k order stays in effect and they tell them what you have there every morning at nine o'clock surveying there's smoke and if you see anything to direct hoses or to you know put this is use a reg whenever method they want to use to alleviate that problem but he can design of what he was in effect the secretary is taking control for the protection of human life and do they do that kind secretary has chosen to argue this in terms of this is a mine fire but i think you know i would have thought a better ground would be to argue that it's an accident and obviously the secretary chose not to do that maybe i'm missing something about the that this unique theory of the accident which is not one of these specified things such as fire should not now be adopted as a type of an accident the truth is we didn't feel we needed to go that route because we had one that extremely dangerous and these men and women that work in those underground coal mines every day do things that most of us would not be willing to do their families don't know if they're coming home each night we have an obligation to make sure that they're safe  e i my time's up i can talk more if you'd like or i can see their thank you thank you you don't take it personally being a good fact pattern for am coal i would say that they pose an interesting question and that is that there was a gradual heating of coal over an extended period of time versus what you traditionally think of as a sudden event it's an accident and the question is is the rule making is the rule making by adjudication process that is ongoing here is this the thoughtful process that should be applied for such a far reaching issue as judge as commissioner young mentioned in the sense that the in this is the chevron step to question is it we still don't know the secretary has never said or produced any material about where the it didn't relate to section one of three qaeda related to a park fifty regulation there was an interpretation of fire in that case but the question is how has it been applied in the field and has it been a political to section one of three k and i would say that again looked at and inspector chris opinion that it could burst into flame at any moment again inspectors they they have access to heat guns and or looking infrared cameras to take temperature readings that when done no carbon monoxide was affected no flames no lumination is undisputed none of those things were seen so if we allow that to be substantial evidence then again it will simply be where there's smoke there's fire and all that really required and that's a little be applied by administrative law judges as well as inspectors and