Peabody Asks Court to Overturn Mine Safety Citation

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By Lars-Eric Hedberg

Peabody Energy asked a federal appeals court to overturn its citation for improperly sealing ventilation stopping, which separates intake air from return air, at a Colorado coal mine.

The U.S. Court of Appeals for the Tenth Circuit will decide whether Peabody’s use of polyurethane spray foam to seal the perimeter of a concrete block ventilation stopping at the company’s Foidel Creek Mine amounts to “a traditionally accepted method” ( Peabody Twentymile Mining v. Sec’y of Labor , 10th Cir., No. 17-09540, 8/25/17 ).

A Federal Mine Safety and Health Review Commission administrative law judge affirmed the Aug. 6, 2014, citation alleging Peabody Twentymile Mining’s use of foam violated federal regulation 30 C.F.R. 75.333(e)(1)(i).

More than a thousand such stoppings, which prevent gasses from entering escapeways, are used in the mine, according to the review commission. Peabody sold 2.6 million tons of coal from the northwest Colorado mine in 2016.

Jackson Kelly PLLC, Pittsburgh, which represents Peabody, declined to comment to Bloomberg BNA.

Violation Despite Ventilation Plan

Peabody’s Mine Safety and Health Administration-approved ventilation plan recognizes two types of stoppings—temporary metal panel stoppings and permanent concrete block stoppings. Temporary metal panels may be sealed with polyurethane foam, a non-strength-enhancing material, according to MSHA.

Peabody used the foam to seal the edges of both temporary and permanent stoppings. Its 2011 ventilation plan didn’t limit the use of the foam to temporary stoppings, and the company had used the foam since 1983. MSHA finalized the “traditionally accepted method” regulation in 1996.

Despite Peabody’s use and MSHA’s lack of enforcement during prior inspections, the agency issued a citation for this violation, among others.

Prior or longtime use of a method within a mine is irrelevant to whether the company built the stoppings according to “traditionally accepted methods,” Administrative Law Judge David P. Simonton wrote. He assessed a $162 fine for the citation.

Two commissioners said they would affirm Simonton’s ruling, while two said they would reverse and vacate the citation. As a result, Simonton’s decision was affirmed.

The review commission is currently operating with four members rather than five.

Peabody’s Likely Arguments

Peabody filed the petition in the U.S. Court of Appeals for the Tenth Circuit Aug. 25.

Its arguments before the Tenth Circuit may track the opinion authored by Chairman William Althen and Commissioner Michael Young, who would have reversed Simonton’s ruling.

“In short, because MSHA traditionally accepted this method—both implicitly through allowing the longstanding, widespread practice at the Foidel Creek Mine, and explicitly through approving the practice in Peabody Twentymile’s ventilation control plan—it was a ‘traditionally accepted method,’” they wrote.

If the term were ambiguous, the secretary’s interpretation of the regulation is not entitled to deference, the chairman and commissioner wrote. Here, the secretary is interpreting his own earlier interpretation in the preamble, and such interpretations cannot receive deference under the U.S. Supreme Court’s 1997 Auer decision.

The Department of Labor, Office of the Solicitor, Arlington, Va., represents the secretary.

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The petition for review filed by Peabody Twentymile Mining in the U.S. Court of Appeals for the Tenth Circuit in Peabody Twentymile Mining v. Secretary of Labor is available at http://src.bna.com/r2J.

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