931 F.3d 992 | 10th Cir. | 2019
Lead Opinion
*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."
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
I.
"Section 101(a) of the Federal Mine Safety and Health Act of 1977,
Here, the relevant regulation,
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.
*995Safety Standards for Underground Coal Mine Ventilation,
[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.
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
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
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.
*996Peabody Twentymile contested the citation before a Commission ALJ. After a hearing on the merits, the ALJ issued a decision upholding the citation for violating
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."
As a result of the Commissioners' split decision, the ALJ's decision stood as though affirmed. See Plateau Mining Corp. ,
II.
Because there is no majority decision from the Commission, we review the ALJ's factual findings for substantial evidence and legal conclusions de novo. Plateau Mining Corp. ,
The "first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Ceco Concrete Constr., LLC v. Centennial State Carpenters Pension Tr. ,
This case turns on the meaning of
The question in this case, then, is what constitutes a "traditionally accepted method" of construction as that term is used in § 75.333(e)(1)(i). The terms "traditionally" and "accepted" are not defined in the standard. The absence of a definition in the standard, however, does not necessarily make the term ambiguous. In these circumstances, we apply the ordinary or dictionary definitions of the terms. Jones v. Comm'r ,
In or around 1996 when the regulation was promulgated, "traditionally" was defined as: "[i]n a traditional manner; by, in the way of, or according to tradition." Oxford English Dictionary (2d ed. 1989). The plain and ordinary meaning of "tradition" was "[a] long established and generally accepted custom or method of procedure, having almost the force of a law."
The Secretary disagrees with this definition of "traditionally accepted" and argues that a method can only be "traditionally accepted" if it appears on the list of methods *998in the preamble of the regulations. The problem with the Secretary's interpretation, however, is that it is inconsistent with the plain language of the regulation. The regulation's plain language is broader than the Secretary suggests and points to a definition of "traditionally accepted" as a method approved of over a period of time. There is nothing in the language of the regulation that suggests that a traditionally accepted method is somehow further limited. Indeed, as the Secretary points out, there could be many ways in which a method could become traditionally accepted under the plain language of the regulation. Aple. Br. at 19. For example, a method could be accepted by MHSA inspections over a considerable period of time, through long-recognized industry standards, or by regulations that limit or define such methods. See
The Secretary points out, and we acknowledge, that a regulation is "ambiguous if it is reasonably susceptible to more than one interpretation or capable of being understood in two or more possible senses or ways." Nat'l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc. ,
Moreover, while the preamble can inform the interpretation of the regulation, it is not binding and cannot be read to conflict with the language of the regulation itself. See Blue Mountain Energy v. Dir., Office of Workers' Comp. Programs, U.S. Dep't of Labor ,
III.
Because the term "traditionally accepted" has an ordinary and plain meaning, our inquiry is whether Peabody Twentymile's use of polyurethane foam to seal the perimeters of concrete block stoppings was "traditionally accepted" in a manner consistent with the regulation. Peabody Twentymile argues that its use of foam was traditionally accepted because MSHA generally assented to or approved of Peabody Twentymile's construction method *999over a considerable period of time.
The record shows longstanding acceptance by MSHA of the method in which Peabody Twentymile constructed its concrete block stoppings. The mining operator used foam to seal hundreds of block stoppings over multiple decades. Prior to receiving the citation in 2014, Peabody Twentymile had employed the same method to seal the perimeter of its block stoppings since at least 1991. Peabody Twentymile's use of polyurethane foam to seal its concrete block stoppings preceded MSHA's 1996 promulgation of the regulation approving the use of "traditionally accepted methods." After 1996, Peabody Twentymile continued to use polyurethane foam to seal the perimeters of its concrete block stoppings for eighteen years on hundreds or even thousands of stoppings.
These ventilation stoppings were subject to MSHA's four quarterly inspections each year between 1996 and 2014, and they were also subject to numerous spot inspections. In fact, the reversing Commissioners examined MSHA's records and found that over 800 inspections had occurred at the Foidel Creek Mine since 1995. JA at 258.
Additionally, MSHA reviewed and approved Peabody Twentymile's use of polyurethane foam in Peabody Twentymile's ventilation plans at least once every six months. See
The Secretary all but concedes that it approved of Peabody Twentymile's polyurethane foam method for many years. The Secretary acknowledges both that it issued no citations for Peabody Twentymile's use of the foam, even after hundreds of inspections, and that it approved foam use on ventilation devices in Peabody Twentymile's ventilation plans. This evidence demonstrates that Peabody Twentymile employed a "traditionally accepted method" for constructing its ventilation stoppings. Because we conclude that the foam method employed at Peabody Twentymile's Foidel Creek Mine was traditionally accepted by MHSA, we reverse the decision of the ALJ.
IV.
For the reasons stated above, we GRANT the petition for review, REVERSE
*1000the decision of the ALJ, and VACATE the citation.
The citation was modified after originally issued. The modified language is included here.
Peabody Twentymile asserts that the strength of the concrete block stoppings that are sealed with foam around the perimeter is not in jeopardy because the faces of the stoppings are sealed with mortar. Aplt. Br. at 24.
Because the ALJ concluded that the preamble contained an exhaustive list of traditionally accepted methods that did not include Peabody Twentymile's method, the ALJ did not analyze whether Peabody Twentymile's construction method for block stoppings was "traditionally accepted" according to the plain meaning of that phrase.
The reversing Commissioners specifically cite to: Mine Inspections, U.S. Department of Labor, Mine Data Retrieval System, https://arlweb.msha.gov/drs/drshome.htm and directing user to "search for Foidel Creek's Mine ID, '0503836'; then choose 'Inspections,' enter '1/1/1995' as the Beginning Date, and click 'Get Report.' "
Dissenting Opinion
I respectfully dissent. I disagree with the majority's conclusion that the phrase "traditionally accepted," as used in
I
I begin by addressing several important facts that the majority omits from its discussion. The particulars in this case matter, especially as they relate to the difference between the two kinds of ventilation stoppings Peabody uses and the language in Peabody's MSHA-approved ventilation plans. I discuss each below.
In an underground coal mine like the Foidel Creek Mine, it is important to keep intake air (clean air) separate from return air (toxic air). A mine's ventilation system does this by drawing air into the mine (intake air), forcing the intake air past areas where coal is being mined, and then exhausting intake air out of the mine as return air. Ventilation stoppings separate intake entries (tunnels that contain intake air) from return entries (tunnels that contain return air) and belt entries (tunnels with conveyor belts that carry coal out of the mine). Ventilation stoppings thereby prevent return and belt air from contaminating intake air and exposing miners to toxic or explosive gasses.
The Foidel Creek Mine uses two types of permanent ventilation stoppings: Kennedy stoppings and concrete block stoppings.
Peabody's practice of sealing Kennedy stoppings with polyurethane foam is indisputably permissible, as is Peabody's practice of covering the face of the dry-stacked concrete blocks with a sealant. The only issue in this case is whether Peabody properly used polyurethane foam-rather than mortar or a different type of strength-enhancing sealant-to seal the perimeters of its block stoppings.
Peabody argues-and the majority seems to agree-that its practice of sealing the perimeters of block stoppings with polyurethane foam was included in the ventilation plans Peabody periodically submitted to MSHA for approval. "[E]ach mine operator is ... required to develop and follow a mine-specific ventilation plan." Plateau Mining Corp. v. Fed. Mine Safety & Health Review Comm'n,
The majority asserts that "[t]he Secretary acknowledges ... that [MSHA] approved foam use on ventilation devices in Peabody Twentymile's ventilation plans." Maj. Op. at 999. This wording sidesteps the important issue: whether MSHA approved Peabody's use of polyurethane foam to seal the perimeters of block stoppings. It is irrelevant if MSHA approved Peabody's use of polyurethane foam generally in the Foidel Creek Mine. It is similarly irrelevant if MSHA approved Peabody's use of polyurethane foam to seal the perimeters of Kennedy stoppings. The crucial issue, at least under the majority's analysis, is whether, by approving the ventilation plans, MSHA approved Peabody's use of polyurethane foam to seal the perimeters of block stoppings. In my view, the record does not indicate that it did.
MSHA first approved a ventilation plan for the Foidel Creek Mine in 1983. The 1983 Plan includes diagrams depicting how block and Kennedy stoppings are to be constructed, and specifies different construction methods for the two kinds of stoppings. The diagram detailing the construction of block stoppings states that "mortar mix or [an] approved sealant [is to be applied] to [the] periphery of [the] stopping." JA at 190 (emphasis added and capitalization omitted). The 1983 Plan contains a list of "acceptable sealants for dry-stacked block stoppings."
Given these differences, the 1983 Plan is, at the very least, ambiguous about whether it permits the construction of block stoppings by sealing the perimeters with polyurethane foam. It certainly does not expressly allow that method of construction.
Between 1983 and the 2014 citation, MSHA approved three new ventilations plans for the Foidel Creek Mine-in October 1990,
None of these later three plans (1990, 2000, or 2011) distinguish between Kennedy and block stoppings. Instead, they each broadly refer to "ventilation devices." And none of the plans either expressly permit or expressly prohibit the use of polyurethane foam to seal the perimeters of block stoppings. Rather, the plans address only the general manner in which polyurethane *1002foam will be used-foam use "will be limited to sealing the perimeters and joints of ventilation devices."
Therefore, in my view, the 1990, 2000, and 2011 ventilation plans, like the 1983 Plan, are ambiguous about whether they permit the use of polyurethane foam to seal the perimeters of block stoppings. And despite Peabody's and the majority's assertions otherwise, MSHA did not expressly authorize this construction method by approving Peabody's 1983, 1990, 2000, and 2011 ventilation plans.
With this factual background in mind, I turn to the question in this case: whether the phrase "traditionally accepted," as used in § 75.333, includes the use of polyurethane foam to seal the perimeters of block stoppings.
II
As the majority recognizes, we begin our statutory interpretation analysis by looking to the regulation's plain text. We must first determine "whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co.,
The relevant portion of the regulation states:
[A]ll overcasts, undercasts, shaft partitions, permanent stoppings, and regulators, 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.
The majority omits important statutory analysis steps to conclude based on dictionary definitions-and dictionary definitions only-that the phrase "traditionally accepted" is unambiguous. Crucially, the majority disregards the settled principle "that a dictionary definition, standing alone, is not necessarily dispositive." Hackwell v. United States,
The definition of words in isolation ... is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.
Dolan v. U.S. Postal Serv.,
The Supreme Court has frequently concluded that a word or phrase was ambiguous despite the existence of a dictionary definition for the term or terms at issue. In Robinson v. Shell Oil Co., for example, the Court held that the word "employees" in the context of § 704(a) of Title VII was ambiguous as to whether it included former employees.
Similarly, in Yates v. United States, a plurality of the Court concluded that the phrase "tangible object" in § 1519 of the Sarbanes-Oxley Act should be "read to cover only objects one can use to record or preserve information, not all objects in the physical world."
Other examples abound. See, e.g., FAA v. Cooper,
Application of the tools of statutory interpretation reveals that the phrase "traditionally accepted," as used in § 75.333, is ambiguous as to whether it includes the use of polyurethane foam to seal the perimeters of block stoppings. Looking-as the majority does-first at the regulation's plain text, the regulation neither defines "traditionally accepted" nor makes clear which methods of construction are "traditionally accepted." And giving those terms their "ordinary and customary meaning," Mitchell v. Comm'r,
*1004First, it is unclear from the regulation who must "traditionally accept" a construction method. Must MSHA as a whole, a specific MSHA District Office, or a particular mine inspector accept the method? It is also unclear at what level the method must be accepted. Must the method be accepted nationally by MSHA at every coal mine, or only locally at a particular coal mine? The regulation does not provide an answer, which could be many, any one, or none, of these possibilities.
Further, the regulation leaves unclear the standards by which "traditional[ ] accept[ance]" is measured. Must the particular construction method have been traditionally accepted in 1996 when the regulation issued? Or could a construction method become traditionally accepted over time? And how long does it take for a construction method to become traditionally accepted?
Moreover, all of these questions remain unresolved by the majority's definition. According to the majority, "traditionally accepted," as used in § 75.333, unambiguously means "approved of in a customary manner or regularly over a period of time." Maj. Op. at 997. But this definition does not answer who must "approve[ ] of" a construction method "in a customary manner or regularly over a period of time," when the construction method must be "approved of in a customary manner," or what "period of time" is enough for a construction method to become "approved of in a customary manner."
Finally, looking to "the purpose and context of the [regulation]" and "any precedents or authorities that inform the analysis," Dolan,
Similarly, looking to other "precedents or authorities that inform the analysis" does not render "traditionally accepted," in the context of § 75.333, unambiguous. Dolan,
In sum, the majority's analysis fails in at least two ways. First, contrary to established rules of statutory interpretation, the majority relies only on the existence of dictionary definitions to conclude that the regulation is unambiguous. Cf. Dolan,
III
Because the phrase "traditionally accepted" in § 75.333 is ambiguous as to whether it includes the use of polyurethane foam to seal the perimeters of block stoppings, I next analyze the level of deference we owe the Secretary's interpretation of the regulation.
Under Auer v. Robbins,
*1006S. Utah Wilderness All. v. Bureau of Land Mgmt.,
Here, the Secretary's interpretation is inconsistent with decades of enforcement history at the Foidel Creek Mine, and thus not entitled to deference under Auer. But the Secretary's interpretation is consistent with the language of the regulation, the language of the preamble, and the purpose of the Mine Act, so it is entitled to deference under Skidmore.
A
Peabody argues that Auer deference is inappropriate because decades passed in which MSHA did not cite Peabody for violating § 75.333(e)(1)(i), despite Peabody's open use of polyurethane foam to seal the perimeters of block stoppings. According to Peabody, MSHA's failure to cite it in the past indicates that the Secretary's current interpretation of § 75.333 is inconsistent with past interpretations and therefore not entitled to deference. Peabody is incorrect. MSHA's past failure to enforce § 75.333(e)(1)(i) against Peabody does not necessarily indicate a history of inconsistent interpretation. But it does undermine the appropriateness of Auer deference.
The Supreme Court has instructed that Auer deference may be inappropriate "when the agency's interpretation conflicts with a prior interpretation." Christopher v. SmithKline Beecham Corp.,
However, when "an agency's announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute." SmithKline,
That is the situation here. MSHA did not cite Peabody for at least twenty-three years, even though Peabody openly used polyurethane foam to seal the perimeters of block stoppings in the Foidel Creek Mine. In this situation, even though MSHA's enforcement history does not necessarily indicate prior inconsistent interpretations, "the potential for unfair surprise is acute," and Auer deference is inappropriate.
B
Because the Secretary's interpretation is not entitled to Auer deference, I "accord the [Secretary]'s interpretation a measure of deference proportional to the 'thoroughness *1007evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.' "
First, the Secretary's interpretation is consistent with the regulation's language. The regulation requires stoppings to "be constructed in a traditionally accepted method and of materials that have been demonstrated to perform adequately."
The Secretary's interpretation is also consistent with the regulation's preamble.
Since 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. These traditionally accepted construction methods are:
[ (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 *1008stopping coated with a suitable mine sealant; and
[ (5) ] lightweight incombustible cementatious masonry blocks coated on the joints and perimeter with a strength enhancing sealant for dry-stacked stoppings....
For new construction methods or materials other than those used for the traditionally accepted constructions above, the final rule requires that the strength be equal to or greater than the traditionally accepted in-mine controls.
First, the preamble uses the word "are," rather than a broader word such as "include" to introduce the list of traditionally accepted construction methods. This word choice indicates that the list is exhaustive. Second, the preamble also specifies that the strength of construction methods or materials not included in the preamble's list must "be equal to or greater than the traditionally accepted in-mine controls."
Finally, the Secretary's interpretation of § 75.333(e)(1)(i) advances the Mine Act's purpose of promoting the safety and health of mine workers. Testimony before the ALJ indicated that it is safer to seal the perimeters of block stoppings with mortar than with polyurethane foam because mortar allows less air leakage, degrades at a slower rate, and enhances a stopping's strength. Testimony also indicated that if a fire erupted in a mine, foam would burn away, allowing return air to mix with intake air and exposing miners to toxic fumes. This testimony supports the conclusion that using mortar to seal the perimeters of block stoppings is safer for miners than using only foam. Protecting the safety of miners is at the heart of MSHA's mission. See
In summary, the Secretary's "announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, [so] the potential for unfair surprise is acute," and Auer deference is not appropriate. SmithKline,
IV
Because I conclude that the Secretary's interpretation is entitled to deference, I analyze whether the ALJ's finding that Peabody violated § 75.333(e)(1)(i) is supported by substantial evidence and therefore conclusive. Plateau,
Substantial evidence is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the decisionmaker. Substantial evidence requires more than a scintilla but less than a preponderance. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.
To establish a violation of § 75.333(e)(1)(i), the Secretary must prove *1009that Peabody's stoppings were not "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."
Peabody argues that the ALJ's determination that it violated § 75.333(e)(1)(i) has no evidentiary support. However, Peabody concedes that it did not construct its block stoppings using a method listed in the preamble. And, as discussed, the Secretary reasonably interprets the list of "traditionally accepted methods" in the preamble to be exhaustive. Thus, the ALJ's finding that Peabody violated
V
In my view, the phrase "traditionally accepted," as used in
I respectfully dissent.
Although the majority refers to the two stopping types as "temporary metal panel stoppings" and "permanent concrete block stoppings," Maj. Op. at 995, the record indicates that Peabody uses both Kennedy and block stoppings as permanent ventilation stoppings.
The 1990 Plan includes an addendum dated August 7, 1991, which sets forth the 1990 Plan's limitations on foam use.
The answer to these questions is especially important in this case because Peabody's argument that its construction method was "traditionally accepted" rests largely on MSHA's long history of not citing Peabody for violating § 75.333. That is, Peabody asserts that, because of MSHA's numerous inspections of the Foidel Creek Mine over the years and approval of Peabody's ventilation plans, MSHA must have known that Peabody was utilizing this construction method. And, according to Peabody, MSHA's failure to cite it before 2014 indicates that MSHA has "traditionally accepted" its construction method. That circumstance is more consistent with a manner of acceptance that occurs at either the MSHA District Office level or by particular mine inspectors than with general acceptance by MSHA at the national level.
Even in light of the majority's conclusion that Peabody's method of construction was traditionally accepted, it is still unclear how the majority would answer these questions. As the majority acknowledges, the record indicates that Peabody has used the construction method at issue since at least 1991-five years before the regulation issued. But the record also indicates that Peabody continued to use that construction method for at least eighteen years after the regulation issued. The majority does not elucidate at what point during Peabody's use of polyurethane foam to seal the perimeters of block stoppings that use became "traditionally accepted."
The majority asserts that it is "not required to go searching for conflicting interpretations." Maj. Op. at 998. However, principles of statutory interpretation do require the majority to acknowledge the existence of readily apparent reasonable interpretations. The majority cannot merely assert that no ambiguity exists, then ignore all other reasonable interpretations. See, e.g., Robinson,
As discussed, the Secretary's interpretation of § 75.333(e)(1)(i) is inconsistent with its enforcement history at the Foidel Creek Mine, which admittedly decreases its persuasive value. But this is just one of several factors and, on the whole, MSHA's interpretation is persuasive and entitled to deference under Skidmore.
Peabody argues that "the Secretary [erroneously] relied principally on the language in the preamble to the rule to override the plain language of the rule." Aplt. Br. at 25. Peabody also asserts that the Secretary concludes "the preamble is rule and ... binding[, but i]t is not." Aplt. Reply at 9-10. These arguments fail.
As discussed, the regulation is ambiguous as to whether it allows the use of polyurethane foam to seal the perimeters of block stoppings, so the Secretary properly looked to the preamble to interpret the regulation's meaning. See, e.g., Wyoming Outdoor Council v. U.S. Forest Serv.,