Peabody Twentymile Mining, LLC v. Sec'y Labor

• Decision Date: 18 July 2019
• Docket Number: No. 17-9540,17-9540
• Citation: 931 F.3d 992
• Parties: PEABODY TWENTYMILE MINING, LLC, Petitioner, v. SECRETARY OF LABOR, and Federal Mine Safety and Health Review Commission, Respondents.
• Court: U.S. Court of Appeals — Tenth Circuit

931 F.3d 992

PEABODY TWENTYMILE MINING, LLC, Petitioner,

v.SECRETARY OF LABOR, and Federal Mine Safety and Health Review Commission, Respondents.

No. 17-9540

United States Court of Appeals, Tenth Circuit.

FILED July 18, 2019

Ralph Henry Moore, II (Patrick W. Dennison with him on the briefs), Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Petitioner.

Emily Toler Scott, Attorney (Nicholas C. Geale, Acting Solicitor of Labor; April E. Nelson, Associate Solicitor; and Ali A. Beydoun, Counsel, Appellate Litigation, with her on the brief), United States Department of Labor, Office of the Solicitor, Arlington, Virginia, for Respondents.

Before BRISCOE, BALDOCK, and EID, Circuit Judges.

EID, Circuit Judge.

Peabody Twentymile Mining, LLC ("Peabody Twentymile") operates the Foidel Creek Mine, a large underground coal mine in Colorado. The mine uses over one thousand ventilation stoppings to separate the fresh intake air from the air flowing out of the mine that has been circulated through areas where extraction is occurring. Federal law requires permanent ventilation stoppings to be "constructed in a traditionally accepted method and of materials that have been demonstrated to perform adequately." 30 C.F.R. § 75.333(e)(1)(i). In 2014, an inspector for the Mine Safety and Health Administration ("MSHA") issued a citation to Peabody Twentymile for a violation of this safety standard because it had used polyurethane spray foam to seal the perimeter of a permanent concrete block ventilation stopping.

Peabody Twentymile unsuccessfully contested the citation and civil penalty before an administrative law judge ("ALJ"). The ALJ relied on the preamble to the ventilation stopping regulation, which listed six "traditionally accepted construction methods," to determine that Peabody Twentymile’s method of constructing concrete block stoppings was not "traditionally accepted" and was subject to a $162 fine. Peabody Twentymile then petitioned the Federal Mine Safety and Health Review Commission (the "Commission") for review, and the Commission issued an evenly split decision, causing the ALJ’s decision to stand. Peabody Twentymile now petitions for judicial review of the ALJ’s decision. Exercising jurisdiction under 30 U.S.C. § 816(a)(1), we grant Peabody Twentymile’s petition for review. Because we conclude that Peabody Twentymile’s construction method was "traditionally accepted" by MSHA under the unambiguous meaning of that phrase, we reverse the ALJ’s decision and vacate the citation.

I.

"Section 101(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 811(a), directs the Secretary of Labor to establish mandatory health and safety standards for mines. Under this authority the Secretary has promulgated a set of regulations governing underground-coal-mine ventilation." Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm’n , 519 F.3d 1176, 1180 (10th Cir. 2008) (citing 30 C.F.R. §§ 75.300 – 75.389 ). These regulations set forth generally applicable standards for mine ventilation systems and require each mine operator to develop and follow a mine-specific ventilation control plan, which must be approved by an MSHA district manager. See id. (citing 30 C.F.R. § 75.370(a) ).

Here, the relevant regulation, 30 C.F.R. § 75.333(e)(1)(i), concerns the construction of mine ventilation stoppings. Ventilation stoppings protect miners from noxious air and help maintain the integrity of the mine’s escapeways by separating clean intake air from polluted outgoing air. The regulation mandates:

Except as provided in paragraphs (e)(2), (3) and (4) of this section all ... permanent stoppings ... installed after June 10, 1996, shall be constructed in a traditionally accepted method and of materials that have been demonstrated to perform adequately or in a method and of materials that have been tested and shown to have a minimum strength equal to or greater than the traditionally accepted in-mine controls.

30 C.F.R. § 75.333(e)(1)(i) (emphasis added). MSHA promulgated this version of the rule in 1996 and published a preamble to the standard.

Safety Standards for Underground Coal Mine Ventilation, 61 Fed. Reg. 9764, 9783–84 (Mar. 11, 1996). The standard itself does not define the methods or materials that have been "traditionally accepted," but the preamble notes that, "[s]ince the inception of the Mine Act, a number of traditionally accepted construction methods have performed adequately and have served their intended function of separating air courses." Joint Appendix ("JA") at 211 ( 61 Fed. Reg. 9783 ). The preamble goes on to list "traditionally accepted construction methods," including:

[1] 8-inch and 6-inch concrete blocks (both hollow-core and solid) with mortared joints;

[2] 8-inch and 6-inch concrete blocks dry-stacked and coated on both sides with a strength enhancing sealant suitable for dry-stacked stoppings;

[3] 8-inch and 6-inch concrete blocks dry-stacked and coated on the high pressure side with a strength enhancing sealant suitable for dry-stacked stoppings;

[4] steel stoppings (minimum 20-gauge) with seams sealed using manufacturer’s recommended tape and with the tape and perimeter of the metal stopping coated with suitable mine sealant; and

[5] lightweight incombustible cementatious masonry blocks coated on the joints and perimeter with a strength enhancing sealant suitable for dry-stacked stoppings.

Id. ( 61 Fed. Reg. 9783 ).

Peabody Twentymile’s Foidel Creek Mine utilizes two types of ventilation stoppings: (1) temporary metal panel stoppings; and (2) permanent concrete block stoppings. The concrete block stoppings are constructed at Peabody Twentymile by stacking concrete blocks, covering the blocks on their face with a strength-enhancing bonding agent, and sealing the sides and tops of the stoppings with polyurethane foam. Peabody Twentymile has been utilizing this method to construct block stoppings since at least 1991. Further, Peabody Twentymile has included its use of polyurethane foam to seal the perimeters of ventilation stoppings in its ventilation plans since 1991. These ventilation plans have been reviewed and approved by the Secretary of Labor (the "Secretary") at least once every six months. See 30 U.S.C. § 863(o) ; 30 C.F.R. § 75.370(g).

During an August 5, 2014, inspection of the Foidel Creek Mine, an MSHA inspector and MSHA assistant district manager noticed that the perimeter of one concrete block stopping was sealed with Touch ’n Seal polyurethane foam and lacked any strength-enhancing sealant around the perimeter behind the foam. After the inspection, the MSHA inspector issued a citation alleging a violation of 30 C.F.R. § 75.333(e)(1)(i) with regard to the concrete block stopping. The citation read, in part:¹

The stopping was not built in a traditionally accepted method that has demonstrated to perform adequately. The following conditions were observed;

1.) The perimeter of the stopping was not sealed with mortar.

2.) The perimeter of the stopping was sealed [wi]th touch N seal foam measuring approximately 0 to 6 inches along the ribs and roof.

JA at 198. There is no dispute the MSHA had never issued a citation to Peabody Twentymile for its use of polyurethane foam prior to the 2014 citation.

Peabody Twentymile contested the citation before a Commission ALJ. After a hearing on the merits, the ALJ issued a decision upholding the citation for violating 30 C.F.R. § 75.333(e)(1)(i) as well as the $162 penalty imposed against Peabody Twentymile for the violation. The ALJ found the traditionally accepted construction methods listed in the regulation’s preamble to be exhaustive and not inclusive of the construction method Peabody Twentymile used for its concrete block stoppings.

Peabody Twentymile petitioned the Commission for discretionary review of the ALJ’s decision, and the Commission granted review. Two Commission members voted to affirm the ALJ’s decision, and two Commissioners voted to reverse the ALJ’s decision. The two affirming Commissioners disagreed about the degree of deference owed to the Secretary’s interpretation of § 75.333(e)(1)(i). They both found, however, that the Secretary’s interpretation was entitled to deference and voted to affirm the ALJ’s findings that Peabody Twentymile had not constructed the concrete block stoppings using a "traditionally accepted method" in violation of § 75.333(e)(1)(i).

The reversing Commissioners found that "traditionally accepted method" has a plain meaning and that MSHA had "traditionally accepted" Peabody Twentymile’s use of polyurethane foam to seal the perimeter of its block stoppings because it had not issued previous citations for the practice and had consistently approved the mine’s ventilation plans. The reversing Commissioners noted,

[I]t strains credulity to characterize MSHA’s continuous approval of Peabody Twentymile’s use of polyurethane foam for over 31 years as ‘an error’ when that approval took the form of explicit approval of its ventilation plans, at least 60 reviews of that plan, and hundreds of inspections covering hundreds of block stoppings without issuing a single citation.

JA at 264. They also concluded that "it defies credulity to assert that MSHA allowed an unsafe practice to exist for three decades in a large and important underground coal mine." Id. The reversing Commissioners noted that, even if 30 C.F.R. § 75.333 were ambiguous, the Secretary’s interpretation should not be entitled to deference because neither the regulation nor the preamble prohibits the method and the Secretary’s enforcement practices prior to 2014 do not align with the Secretary’s current interpretation.

As a result of the Commissioners’ split decision, the ALJ’s decision stood as though affirmed. See Plateau Mining Corp. , 519 F.3d at 1191 ; Sec’y of Labor, Mine Safety & Health Admin. v. Penn. Elec. Co. , 12 FMSHRC 1562, 1563–65 (1990), aff’d on other grounds , 969 F.2d 1501 (3d Cir. 1992).

II.

Because there is no majority decision from the Commission, we review...