Peabody Twentymile Mining v. Secretary of Labor

931 F.3d 992
Court of Appeals for the Tenth Circuit·Decided July 18, 2019·No. 17-9540·Published·Cited by 14 cases

Opinions

EID, Circuit Judge.

*994Peabody 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.

*995Safety 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.

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Peabody Twentymile Mining v. Secretary of Labor, 931 F.3d 992 (10th Cir. 2019).

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