931 F.3d 992
10th Cir.2019Background
- Peabody Twentymile operates Foidel Creek Mine and used dry‑stacked concrete block stoppings whose faces were coated with a strength‑enhancing sealant and whose perimeters were sealed with polyurethane spray foam since at least 1991.
- 30 C.F.R. § 75.333(e)(1)(i) (promulgated 1996) requires permanent stoppings be constructed by a "traditionally accepted method" or by methods/materials tested to equal or exceed traditionally accepted controls; the regulation itself does not define "traditionally accepted."
- MSHA’s 1996 preamble listed five ‘‘traditionally accepted construction methods’’ (various mortared or coated block methods, steel stoppings, cementitious blocks), but the preamble is not part of the operative regulation.
- In 2014 an MSHA inspector cited Peabody for using polyurethane foam at the perimeter of a permanent concrete block stopping; Peabody contested the citation before an ALJ and lost.
- The Federal Mine Safety and Health Review Commission split 2–2 on review, leaving the ALJ decision intact; Peabody petitioned for judicial review in the Tenth Circuit.
- The Tenth Circuit majority reversed the ALJ: it held "traditionally accepted" is unambiguous and encompasses methods repeatedly accepted by MSHA (including Peabody’s long‑running practice and approved ventilation plans), so the citation was vacated; Judge Briscoe dissented, finding ambiguity and deferring to the Secretary's interpretation.
Issues
| Issue | Peabody's Argument | Secretary/MSHA's Argument | Held |
|---|---|---|---|
| Meaning of "traditionally accepted" in 30 C.F.R. § 75.333(e)(1)(i) | Means methods approved or routinely accepted over time (e.g., by inspections and plan approvals); Peabody’s foam use was long accepted | Limited to the methods enumerated in the preamble; foam perimeter sealing is not a listed traditionally accepted method and is not tested to required strength | Court (majority): Unambiguous: "traditionally accepted" means practices approved/customary over time; Peabody’s foam sealing was traditionally accepted; citation vacated |
| Role and weight of the preamble | Preamble is informative but not controlling; absence of foam in the preamble does not preclude a method being traditionally accepted by practice | Preamble's list is exhaustive (uses "are"), so unlisted methods must meet tested‑strength alternative; preamble supports enforcement against foam use | Court (majority): Preamble not binding; cannot graft preamble limits onto the regulation; Court (dissent): preamble supports Secretary's exclusion and Skidmore deference |
| Deference to agency interpretation (Auer/Skidmore) | Agency enforcement history (decades of approval/inspections and plan approvals) shows acceptance; agency action inconsistent to merit deference against Peabody | Agency’s reading consistent with regulation/preamble and safety purpose; prior inaction does not preclude deference | Court (majority): Regulation unambiguous so no deference to contrary agency view; dissent: ambiguous, Auer inappropriate due to long inaction, but Skidmore persuasive—would defer to Secretary |
| Sufficiency of evidence to support citation | Longstanding MSHA inspections and repeated ventilation plan approvals constitute evidence of traditional acceptance | ALJ found method not traditionally accepted; Secretary points to safety testimony favoring mortar/sealant over foam | Court (majority): Substantial evidence shows MSHA accepted Peabody’s method; citation vacated. Dissent: ALJ's finding supported by substantial evidence and would affirm citation |
Key Cases Cited
- Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm'n, 519 F.3d 1176 (10th Cir.) (framework for review of Mine Act regulation and ventilation plan approval)
- Mitchell v. Comm'r, 775 F.3d 1243 (10th Cir. 2015) (apply ordinary meaning to regulate text and end analysis if unambiguous)
- Nat'l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199 (10th Cir. 2014) (definition of ambiguity standard)
- Blue Mountain Energy v. Dir., Office of Workers' Comp. Programs, 805 F.3d 1254 (10th Cir. 2015) (preamble may inform but is not binding law)
- Nat'l Wildlife Fed'n v. EPA, 286 F.3d 554 (D.C. Cir. 2002) (preamble not an operative part of the statute/rule)
- Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (statutory interpretation: consider context; dictionary definition alone may not resolve ambiguity)
- Dolan v. U.S. Postal Serv., 546 U.S. 481 (2006) (dictionary definition not dispositive; interpret in context)
- Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012) (agency inaction can undermine Auer deference where prolonged inaction leads to unfair surprise)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency's reasonable interpretation of its own regulation unless plainly erroneous)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (informal agency interpretations entitled to weight proportional to their persuasiveness)