Filed: Jul. 10, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 10, 2018 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker _ Clerk of Court CANYON FUEL COMPANY, LLC, Petitioner, v. No. 17-9541 SECRETARY OF LABOR; FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondents. _ Petition for Review of an Order from the Federal Mine Safety and Health Review Commission (MSHR No. West 2015-635) _ Ralph Henry Moore, II (Patrick W. Dennison with him on the briefs), Jackson Kell
Summary: FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS July 10, 2018 FOR THE TENTH CIRCUIT Elisabeth A. Shumaker _ Clerk of Court CANYON FUEL COMPANY, LLC, Petitioner, v. No. 17-9541 SECRETARY OF LABOR; FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION, Respondents. _ Petition for Review of an Order from the Federal Mine Safety and Health Review Commission (MSHR No. West 2015-635) _ Ralph Henry Moore, II (Patrick W. Dennison with him on the briefs), Jackson Kelly..
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 10, 2018
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court
CANYON FUEL COMPANY, LLC,
Petitioner,
v. No. 17-9541
SECRETARY OF LABOR; FEDERAL
MINE SAFETY AND HEALTH REVIEW
COMMISSION,
Respondents.
_________________________________
Petition for Review of an Order from the
Federal Mine Safety and Health Review Commission
(MSHR No. West 2015-635)
_________________________________
Ralph Henry Moore, II (Patrick W. Dennison with him on the briefs), Jackson Kelly
PLLC, Pittsburgh, Pennsylvania, for Petitioner.
Emily C. Toler, 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 MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
Canyon Fuel operates the Sufco Mine, a coal mine located in Sevier County,
Utah. Under federal law, the mine must have two escapeways in the event of an
emergency: a primary escapeway and an alternate escapeway. An inspector for the
Mine Safety and Health Administration (“MSHA”) cited Canyon Fuel for a violation
of this mine safety requirement. Canyon Fuel unsuccessfully contested the citation
before the federal agency and now petitions for judicial review of that decision. We
affirm the Secretary of Labor’s interpretation of the regulation as requiring
consideration of both above- and below-ground factors, but we vacate the citation
because it is not supported by substantial evidence.
I. BACKGROUND
A. Factual History
Canyon Fuel’s Sufco Mine employs between eighty and ninety miners per
shift. Canyon Fuel Co. v. Sec’y of Labor, Mine Safety & Health Admin., 38 FMSHRC
2205, 2206 (2016) (“Canyon Fuel I”). Approximately twenty of those miners are
deployed to the two working sections of the mine relevant to this appeal. Id. The
primary escapeway from the mine exits through the West Lease Portal, which is the
main entrance to the mine and is accessible by road.
Id. at 2207. Canyon Fuel
installed the 4 East Fan Portal in 1991 and designated it as the primary escapeway in
1992.
Id. at 2210. Later, Canyon Fuel designated the 4 East Fan Portal as the
alternate escapeway.
Id. at 2210. The 4 East Fan Portal, unlike the West Lease Portal,
opens onto a canyon ledge that is not accessible by road.
Id. at 2207. For over twenty
2
years, the 4 East Fan Portal remained as Canyon Fuel’s designated alternate
escapeway, without objection from MSHA. Id. at 2214.
In June 2014, Russell Riley, MSHA’s District Manager for Coal District 9,
which includes the Sufco Mine, visited the mine to conduct an inspection. Id. at
2206. Mr. Riley examined the escapeway map and noted that the primary escapeway
exited through the West Lease Portal, while the alternate escapeway exited through
the 4 East Fan Portal.
Id. at 2207. Mr. Riley asked why other portals close to the
working sections were not used for escapeways and was told there were no roads to
those portals.
Id. Upon further inquiry, Mr. Riley learned that the 4 East Fan Portal
also lacked road access.
Id. Mr. Riley expressed his concerns about use of the 4 East
Fan Portal as the alternate escapeway and, after considering several potential
alternatives, suggested that Canyon Fuel instead designate as the alternate escapeway
another route that paralleled the primary escapeway and also exited from the West
Lease Portal (the “West Lease Portal escapeway”).
Id. at 2208. The 4 East Fan Portal
escapeway and the West Lease Portal escapeway travel along the same path for the
first part of the route. The two escapeways then diverge and have significant
differences which are relevant to this dispute. We now describe those differences in
some detail.
1. The 4 East Fan Portal Escapeway
The current alternate escapeway for the Sufco Mine is the 4 East Fan Portal
route. Id. at 2207. The distance from the 4 East Fan Portal to the deepest point of
penetration in the working sections of the mine is 2.34 miles.
Id. at 2212. The
3
escapeway from that deepest point to the 4 East Fan Portal has five overcasts, which
are “ventilation control[s] that permit[] two air currents to cross without mixing.”
Appellant’s Br. at 8. The existence of an overcast is important for assessment of the
feasibility of an escapeway because the overcast creates “an overpass over an entry
and must be climbed up and over to continue” along the escapeway. Id. Miners
typically use either a ramp or a staircase to cross overcasts and, therefore, escaping
miners usually cannot drive over an overcast in a vehicle. As a result, the more
overcasts in an escapeway, the more difficult the path out of the mine. Such travel is
further complicated if the miners are carrying an injured colleague.
The escapeway to the 4 East Fan Portal also requires two Self Contained Self
Rescuer (“SCSR”) change-out stations. An SCSR is a breathing apparatus designed
to allow a miner to breathe clean oxygen in the event that the surrounding
atmosphere is oxygen-deficient (potentially due to a fire) or contains harmful gases
(such as methane). SCSRs are intended to last one hour, depending on the degree of
physical exertion by the user of the SCSR and the user’s physical condition. When a
miner exhausts an SCSR, the miner replaces the empty SCSR with a new one, either
one being carried by the miner or one that is stored in a change-out station along the
route. SCSR change-out requirements are based on MSHA criteria. See 30 C.F.R.
§ 75.1714-4(c). A greater number of change-out stations generally corresponds with a
longer travel time out of a mine or greater difficulty of travel.
Another significant aspect of the escapeway to the 4 East Fan Portal is that it is
located in return air, rather than intake air. Air that comes into the mine immediately
4
prior to reaching the working sections is known as “intake air.” After air has been
used in the working sections, the air is known as “return air” and is transported out of
the mine. Because intake air comes from outside the mine, it may not be
contaminated with smoke or gases in a mine emergency. Thus, miners may not need
to don an SCSR in intake air, assuming the ventilation system is still working. See
Sec’y of Labor, Mine Safety & Health Admin. v. Canyon Fuel Co., 39 FMSHRC
1578, 1594 n.14 (2017) (“Canyon Fuel II”) (reversing commissioners) (if the
ventilation system is not functioning, miners may be “inundated in smoke” and
“require supplemental air”). As a result, it may be advantageous to have an
escapeway with intake air, rather than return air.
Once the miners successfully traverse the escapeway, they will arrive at the 4
East Fan Portal, which exits to the surface on a “ledge” or shelf in the side of a cliff.
Canyon Fuel I, 38 FMSHRC at 2207. The ledge is approximately 200 feet long by 50
feet wide and is located about 150 feet above the canyon floor. Several buildings on
the ledge, including a storage shed, a backup generator, and the 4 East Fan/Fan
House, occupy approximately half the area. The fan and the motor are inside the fan
house, along with first aid and communication equipment. Id. at 2211. It is warm
inside the fan house year round, if the fan is running.
Id. The buildings include
enough space, even in just the fan house, to fit all twenty miners who might need to
use the escapeway.
Id.
There is no road to the 4 East Fan Portal.
Id. at 2207, 2211. As a result, miners
seeking medical assistance would need either to walk down a “gradual” slope to an
5
unpaved cattle trail that parallels the dry creek bed at the bottom of the canyon or to
climb to the top of the canyon. Id. at 2211. Both options would prove difficult. The
cattle trail from the bottom of the 4 East Fan Portal shelf to a gravel road is
approximately four to five miles long, is only two feet wide, and would take
approximately two hours to walk, if clear.
Id. In winter, the trail may have eight to
twelve inches of snowpack.
Id. Alternatively, miners exiting through the 4 East Fan
Portal could climb to the plateau. That option would entail “travel[ing] 400 to 500
yards up a drainage area to get to the top.”
Id. Once on top of the plateau, a Forest
Service road is located nearby.
Id. But the road is not plowed during the winter, so
there is no guarantee of medical assistance even if the miners made it to the top.
Id.
Canyon Fuel has not attempted its proposed route to the top of the plateau, yet claims
it would be difficult, but possible, to carry an injured miner on a stretcher to the top.
Id.
Helicopter service to the 4 East Fan Portal is restricted.
Id. at 2212. Although
the shelf is not large enough to land a helicopter, it may be possible to lower a basket
for aerial evacuation of the miners in the event of an emergency.
Id. at 2209. But
Intermountain Life Flight, the only provider Canyon Fuel identified, has imposed
significant restrictions on such flights.
Id. at 2209, 2212. The “helicopters cannot fly
in winds greater than 45 mph [or] with less than three miles of visibility.”
Id. at 2209.
Furthermore, the helicopters do not fly at night, in rain, ice, sleet, fog, snow, or heavy
cloud cover.
Id. Thus, injured miners could remain stranded on the shelf until the
morning or until the weather improved.
6
2. The West Lease Portal Escapeway
The escapeway proposed by MSHA is the West Lease Portal route. Id. at 2208.
The distance from the deepest point of penetration to the West Lease Portal is 5.88
miles, over 3.5 miles longer than the 4 East Fan Portal escapeway.
Id. at 2212.
However, miners could drive roughly two-thirds of the proposed route if Canyon
Fuel staged vehicles in the escapeway.1
Id. at 2208. The West Lease Portal
escapeway has twelve overcasts and would require five SCSR change-out stations.
This route largely parallels the primary escapeway.
Id. Unlike both the primary
escapeway and the 4 East Fan Portal escapeway, however, it includes “a number of
turns.”
Id. at 2210. The route also includes about one hundred seals used to close off
mined out areas,2 which may increase the hazard to escaping miners.
Id. at 2213.
With the exception of the first part of the route, the West Lease Portal
escapeway is in intake air,3 making the risk of smoke inhalation during an emergency
1
Staging vehicles means leaving vehicles in the mine at a designated point in
the escapeway. From the point of divergence of the 4 East Fan Portal route and West
Lease Portal route, miners would need to travel approximately thirty-five “crosscuts”
by foot. Mine operators develop crosscuts to connect parallel entries into a coal seam
and may use crosscuts as a proxy for location or distance. If Canyon Fuel staged
vehicles at crosscut 176, miners could drive from there to crosscut 4. They would
then need to walk a few more crosscuts to exit.
2
Depending on the barometric pressure in the atmosphere, the seals may ingas,
in which gas leaves the mine into the sealed off area, or outgas, in which gas leaves
the sealed off area into the mine. While the Sufco Mine does not produce many
harmful gases, the outgas may include a low level of oxygen, which may increase the
risk to miners traveling the route.
3
From the point of divergence of the two routes, the 4 East Fan Portal route
and the West Lease Portal route are in return air for approximately thirty and eight
7
unlikely. Id. at 2209. It would take approximately three hours to exit the mine from
the point of divergence from the 4 East Fan Portal escapeway by walking.
Id. at
2212.4 This time may be increased if a miner is injured, wearing an SCSR, or
carrying another miner.
Id. Additionally, the route may require refuge alternatives as
miners may not be able to make it out of the mine due to the distance and difficulty.
The West Lease Portal route ends at approximately the same location as the primary
escapeway; it has road access and medical transportation could be waiting for injured
miners.
Id. at 2208.
The following map is based on Government Exhibits 2 and 16 and Canyon
Fuel Exhibit 1B. It depicts the working sections of the mine at the top, the 4 East Fan
Portal on the right, and the West Lease Portal at the bottom. See slip op. at *9.
crosscuts, respectively. The 4 East Fan Portal route is in actual return air while the
West Lease Portal route is in designated return air, which is air that has not ventilated
a working section but has only been marked by Canyon Fuel as returned. The West
Lease Portal route continues for another 200 crosscuts in intake air. Thus, the
additional distance in return air for the 4 East Fan Portal route may be relatively short
in comparison with the West Lease Portal route.
4
While two-thirds of the route are drivable, the government presented no
evidence of how long evacuation would take when driving.
8
Working Sections
Exit
Primary Escapeway
4 East Fan Portal/West Lease Portal Shared
Point of Divergence
4 East Fan Portal Escapeway
West Lease Portal Escapeway
Exit
9
B. Procedural History
In March 2015, when Canyon Fuel had not changed its alternate escapeway
from the 4 East Fan Portal route to the West Lease Portal route, MSHA issued
Citation No. 8483766 for a violation of 30 C.F.R. § 75.380(d)(5). That regulation
requires that escapeways be “[l]ocated to follow the most direct, safe and practical
route to the nearest mine opening suitable for the safe evacuation of miners.” 30
C.F.R. § 75.380(d)(5). The citation explained that Canyon Fuel was in violation of
the regulation because the alternate escapeway was not accessible via a roadway for
land-traveling vehicles. Canyon Fuel I, 38 FMSHRC at 2206. MSHA determined the
violation was not of a significant and substantial nature, concluded Canyon Fuel was
moderately negligent, and proposed a penalty of $425. Id. Later, MSHA amended the
citation to change the deficient condition to not providing “a roadway for land-
travelling vehicles to access [the] area from the surface or any dependable alternative
evacuation methods,” but it left in place the determination of negligence and the
proposed penalty. Joint App. at 111.
Two months later, MSHA issued Canyon Fuel two additional citations.
Canyon Fuel I, 38 FMSHRC at 2218, 2222. Canyon Fuel challenges one of these,
Citation No. 8480766, in a separate proceeding.5 That citation charges a violation of
5
After filing its notice to contest the citations, but before a decision was
issued, see infra, Canyon Fuel filed a petition for modification of 30 C.F.R.
§ 75.1713-1(b) pursuant to 30 U.S.C. § 811(c). In re Canyon Fuel Co. v. Mine Safety
& Health Admin., 2016-MSA-8 (ALJ May 23, 2017), available at https://
www.oalj.dol.gov/Decisions/ALJ/MSA/2016/In_re_CANYON_FUEL_
10
30 C.F.R. § 75.1713-1(b), which requires Canyon Fuel to “make arrangements with
an ambulance service, or otherwise provide, for 24-hour emergency transportation for
any person injured at the mine.”
Canyon Fuel contested all three citations before an administrative law judge
(“ALJ”). The ALJ affirmed Citation No. 8483766 (the violation of § 75.380(d)(5),
requiring the escapeway to be “[l]ocated to follow the most direct, safe and practical
route to the nearest mine opening suitable for the safe evacuation of miners”),
vacated another citation, and modified Citation No. 8480766 (the violation of
§ 75.1713-1(b), requiring 24-hour emergency transportation). Canyon Fuel I, 38
FMSHRC at 2227. Canyon Fuel then filed a petition for discretionary review of
Citation No. 8483766 and Citation No. 8480766 with the Federal Mine Safety and
Health Review Commission (“the Commission”). The Commission unanimously
COMPANY__2016MSA00008_(MAY_23_2017)_113837_CADEC_SD.PDF. Under
§ 811(c):
[T]he Secretary may modify the application of any mandatory safety
standard . . . if the Secretary determines that an alternative method of
achieving the result of such standard exists which will at all times guarantee
no less than the same measure of protection afforded the miners of such mine
by such standard, or that the application of such standard to such mine will
result in a diminution of safety to the miners in such mine.
Canyon Fuel proposed building a safehouse and a helipad at the 4 East Fan
Portal shelf as a substitute for the “24-hour emergency transportation” requirement of
30 C.F.R. § 75.1713-1(b). Id. at 11–12. It also identified another helicopter operator,
the Utah Department of Public Safety, that has fewer restrictions on flights than
Intermountain Life Flight.
Id. An administrative law judge (“ALJ”) denied the
petition,
id. at 46, but the Assistant Secretary of Labor vacated and remanded to the
ALJ “for additional factual determinations and reconsideration of legal
determinations,” In re Canyon Fuel Co. v. Mine Safety & Health Admin., 2016-MSA-
8 (Assistant Sec’y of Labor Nov. 21, 2017).
11
affirmed Citation No. 8480766 (the violation of § 75.1713-1(b), requiring 24-hour
emergency transportation). Canyon Fuel II, 39 FMSHRC at 1581–83. But the panel
could not agree on Citation No. 8483766, the violation at issue here. Two
commissioners voted to affirm the violation (“affirming commissioners”) and two
commissioners voted to reverse the violation (“reversing commissioners”). Id. at
1579. As such, the ALJ’s decision for Citation No. 8483766 stands as though
affirmed. See Sec’y of Labor, Mine Safety & Health Admin. v. Penn. Elec. Co., 12
FMSHRC 1562, 1563-65 (1990).
Canyon Fuel timely filed this Petition for Review, challenging only Citation
No. 8483766.
II. DISCUSSION
Because the Commission vote split two-to-two, the ALJ’s opinion affirming
the violation was left in place and we review the ALJ’s opinion. Plateau Mining
Corp. v. Fed. Mine Safety & Health Review Comm’n, 519 F.3d 1176, 1191 (10th Cir.
2008). In doing so, we review the ALJ’s legal conclusions de novo and his factual
findings under the substantial evidence standard. Id.; 30 U.S.C. § 816(a)(1). To
establish a violation of 30 C.F.R. § 75.380(d)(5), MSHA must identify a route that
more closely complies with the regulation than the currently designated route. Sec’y
of Labor, Mine Safety & Health Admin. v. S. Ohio Coal Co., 14 FMSHRC 1781, 1785
(1992) (discussing § 75.380(d)(5)’s predecessor).
Canyon Fuel claims the ALJ improperly considered conditions existing outside the
mine in determining that designation of the 4 East Fan Portal as the alternate escapeway
12
violated regulation 75.380(d)(5). It further contends that even if the ALJ were permitted
to consider the conditions affecting miners once they exited through the 4 East Fan
Portal, any finding as to whether the West Lease Portal route, and not the 4 East Fan
Portal route, was “the most direct, safe and practical route to the nearest mine opening
suitable for the safe evacuation of miners” is unsupported by the record evidence. 30
C.F.R. § 75.380(d)(5). The Secretary of Labor (“Secretary”) disagrees, asserting that both
underground and above-ground conditions are relevant to whether the mine opening is
“suitable for the safe evacuation of miners.” Id. And the Secretary argues that the ALJ’s
finding that the West Lease Portal route better meets the regulation is adequately
supported by the record evidence.
We begin our analysis with the legal question: whether MSHA may consider
conditions existing above ground in considering whether Canyon Fuel violated 30 C.F.R.
§ 75.380(d)(5). We then proceed to the factual question: whether substantial evidence
supports the ALJ’s finding that the West Lease Portal route more closely complies with
the regulation than the 4 East Fan Portal route. We conclude that the regulation permits
the Secretary to consider all of the facts and circumstances affecting the escapeway,
including surface conditions facing miners upon exit from the mine. But we vacate the
citation because the ALJ’s factual finding that the West Lease Portal route better meets
the requirement that the escapeway be the “most direct, safe and practical route to the
nearest mine opening suitable for the safe evacuation of miners” than does the 4 East Fan
Portal route is not supported by substantial evidence.
13
A. Interpretation of the Regulation
In interpreting the regulation, “we apply the same rules we use to interpret
statutes.” Mitchell v. Comm’r, 775 F.3d 1243, 1249 (10th Cir. 2015). We examine the
plain language of the regulation and give each word its ordinary and customary
meaning.
Id. Thus, in determining the plain meaning of a regulation, we do not
consider the regulatory history or anything outside the text. If the language of the
regulation is clear, we enforce the regulation in accordance with its plain meaning,
giving no deference to a contrary interpretation by the Secretary.
Id. On the other
hand, where the regulation is ambiguous, “we defer to the [Secretary]’s reasonable
interpretations, even those advanced in his legal brief, unless ‘plainly erroneous or
inconsistent with the regulations,’ or there is any other ‘reason to suspect that the
interpretation does not reflect the agency’s fair and considered judgment on the
matter in question.’”
Id. (quoting Chase Bank USA, N.A. v. McCoy,
562 U.S. 195,
208, 209 (2011)). In making this determination, we may “look beyond the plain
language, examining regulatory intent and overall statutory construction.” Qwest
Corp. v. Colo. Pub. Utils. Comm’n,
656 F.3d 1093, 1099 (2011) (internal quotation
marks omitted). Finally, “a regulation must be interpreted in such a way as to not
conflict with the objective of its organic statute.” Time Warner Entm’t Co., L.P. v.
Everest Midwest Licensee, L.L.C.,
381 F.3d 1039, 1050 (10th Cir. 2004).
1. Plain Language
Canyon Fuel and the Secretary each argue that the plain language of 30 C.F.R.
§ 75.380(d)(5) supports their interpretation of the regulation. Canyon Fuel argues the text
14
of the regulation “addresses the efficiency of the alternate escape routes out of the mine
for purposes of providing miners . . . quick and safe egress out of the mine.” Appellant’s
Br. at 15. It does not, according to Canyon Fuel, “consider conditions outside once
evacuation of miners from underground has occurred.” Id. In turn, the Secretary argues
that § 75.380(d)(5) includes “two distinct requirements: (1) escapeways must be ‘located
to follow the most direct, safe and practical route to the nearest mine opening,’ and (2)
that mine opening must be ‘suitable for the safe evacuation of miners.’” Appellee’s Br. at
25–26 (quoting 30 C.F.R. § 75.380(d)(5)). According to the Secretary, “[w]hether a mine
opening is ‘suitable for the safe evacuation of miners’ depends on whether, at that mine
opening, miners are out of danger or can be quickly and safely removed from danger—an
analysis that must take into account conditions both underground and at the surface.”
Id.
at 26.
The regulation reads:
(d) Each escapeway shall be—
....
(5) Located to follow the most direct, safe and practical route to the
nearest mine opening suitable for the safe evacuation of miners . . . .
30 C.F.R. § 75.380(d)(5). The regulation does not define “evacuation” or “suitable”; thus
we interpret them to have their ordinary or dictionary definitions. See Nat’l Credit Union
Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199, 1227–28 (10th Cir.
2014). The definition of “evacuate” most relevant in this context is: “[t]o remove . . . to
safer surroundings.” Evacuate, Oxford English Dictionary, http://www.oed.com/view/
Entry/65161 (last visited June 25, 2018). Thus, “evacuation” as used in the regulation
15
could mean either (1) removal from the interior of the mine to the mine opening or (2)
removal from the mine opening to another location. In turn, “suitable” is defined as
“fitted for, adapted or appropriate to a person’s . . . needs . . . .” Suitable, Oxford English
Dictionary, http://www.oed.com/view/Entry/193721 (last visited June 25, 2018). The
definition of “suitable,” like the definition of “evacuation,” does not dictate that either the
Secretary’s or Canyon Fuel’s reading is plainly correct.
a. Does “suitable for the safe evacuation of miners” modify the “route” or
the “mine opening”?
The Secretary argues “suitable for the safe evacuation of miners” applies to the
mine opening instead of the route. Contrarily, Canyon Fuel argues that “suitable for the
safe evacuation of miners” modifies the route. In support of his position, the Secretary
notes that principles of statutory construction, such as the “nearest reasonable referent
canon” (sometimes called the last antecedent rule), support his reading. Under this canon,
“a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or
phrase that it immediately follows.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003); United
States v. Osage Wind, LLC,
871 F.3d 1078, 1091 n.11 (10th Cir. 2017), petition for cert.
filed, 17-1237 (Mar. 6, 2018). Because the phrase “suitable for the safe evacuation of
miners” immediately follows “mine opening,” the Secretary argues that the
“grammatically sound interpretation” is that it modifies “mine opening” instead of
“route.” Appellee’s Br. at 28.
But this canon of construction is not mandatory nor is it always the most
reasonable interpretation of a regulation. Indeed, we have classified it as “merely an
16
interpretive presumption based on the grammatical rule against misplaced modifiers.”
Payless Shoesource, Inc. v. Travelers Cos., 585 F.3d 1366, 1371 (10th Cir. 2009)
(rejecting the application of the canon). And the Supreme Court has noted that the
presumption “can assuredly be overcome by other indicia of meaning.” Jama v.
Immigration & Customs Enf’t,
543 U.S. 335, 355 (2005) (internal quotation marks
omitted). “Given how common misplaced modifiers are in daily usage, the Supreme
Court has candidly acknowledged that ‘over the years, such indicia have counseled us
against invoking the rule (often unanimously) at least as many times as we have relied on
it.’”
Payless, 585 F.3d at 1371–72 (quoting
Jama, 543 U.S. at 355). Thus, “while the
rules of English grammar often afford a valuable starting point to understanding a
speaker’s meaning, they are violated so often by so many of us that they can hardly be
safely relied upon as the end point of any analysis of . . . plain meaning.”
Id. at 1372. We
have also noted that “referential and qualifying words or phrases refer only to the last
antecedent, unless contrary to the apparent legislative intent.” Seneca-Cayuga Tribe of
Okla. v. Nat’l Indian Gaming Comm’n,
327 F.3d 1019, 1038 (10th Cir. 2003) (internal
quotation marks omitted). So, while the “nearest reasonable referent canon” provides one
possible reading of the regulation, we are not bound by the grammatical principle,
especially if it is contrary to the “apparent [regulatory] intent” of the regulation.
The Secretary further argues that Canyon Fuel’s interpretation renders the phrase
“suitable for the safe evacuation of miners” meaningless because other standards and the
other clause of § 75.380(d)(5) already require the escapeway routes to be “suitable for the
safe evacuation of miners.” Because we should interpret the standard to give effect to
17
each word and clause, see, e.g., Bridger Coal Co./Pac. Minerals, Inc. v. Dir., Office of
Workers’ Comp. Programs, U.S. Dep’t of Labor, 927 F.2d 1150, 1153 (10th Cir. 1991),
the phrase must be read to modify the mine opening rather than the route. The Secretary
contends that Canyon Fuel’s reading of the standard renders the phrase superfluous—if
the route is the “most direct, safe and practical,” then it would also be suitable for “safe
evacuation.” Thus, he argues, the phrase “suitable for the safe evacuation of miners”
logically must modify the mine opening. But Canyon Fuel counters that “suitable for the
safe evacuation of miners” clarifies that the shortest route may not be proper if conditions
inside the mine render it unsuitable. We are convinced that both positions are reasonable.
The Secretary and Canyon Fuel each advance reasonable interpretations of the
text. The phrase “suitable for the safe evacuation of miners” might be intended to modify
either the route or the mine opening.
b. Are outside conditions considered in determining “suitability”?
It is also not plain from the text of the regulation whether conditions outside
the mine may be considered in determining “suitability.” If, as Canyon Fuel argues,
the route must be “suitable for the safe evacuation of miners” to the surface, it is
reasonable to conclude that conditions inside the mine, rather than conditions at the
surface, are considered in determining suitability. The Secretary disagrees and
contends that, if the mine opening itself must be “suitable,” then it is reasonable to
include conditions outside the mine. Simply put, the language of the regulation
standing alone does not clearly indicate whether conditions outside the mine may be
considered.
18
Nor does looking to other regulations in the section resolve this ambiguity. To
be sure, these subsections all deal with conditions inside the mine6 and thus may
suggest that (d)(5) also relates to conditions inside the mine. And subsection (e) of
the escapeway standard, which specifically provides requirements for surface
openings, is focused on surface conditions that may impact conditions in the mine.7
But nothing in subsection 75.380(d)(5) precludes the analysis of suitability from
including an examination of conditions on the surface affecting the miners’ safety
upon exiting the mine.
Further, as noted by the Secretary, without some consideration of outside
conditions, the regulation could lead to an absurd result. For example, an escapeway
could lead to a shelf with no shelter and no exit, a shelf that is only two feet wide, or
a cliff with no shelf at all. The Secretary argues that under such circumstances, the
6
30 C.F.R. § 75.380(d) reads:
(d) Each escapeway shall be—
(1) Maintained in a safe condition . . . ;
(2) Clearly marked to show the route and direction of travel to the surface;
(3) Maintained to at least a height of 5 feet from the mine floor to the mine
roof . . . ;
(4) Maintained at least 6 feet wide . . . ;
(5) Located to follow the most direct, safe and practical route to the nearest
mine opening suitable for the safe evacuation of miners; and
(6) Provided with ladders, stairways, ramps, or similar facilities where the
escapeways cross over obstructions.
(7) Provided with a continuous, durable directional lifeline or equivalent
device that shall be—
(i) Installed and maintained throughout the entire length of each
escapeway . . . .
7
“Surface openings shall be adequately protected to prevent surface fires,
fumes, smoke, and flood water from entering the mine.” 30 C.F.R. § 75.380(e).
19
escapeway would not lead to a “mine opening suitable for the safe evacuation of
miners.” It follows then, he continues, that any evaluation of the suitability of a mine
opening must consider conditions both outside of the mine and underground.
***
Both Canyon Fuel and the Secretary have advanced plausible interpretations of the
regulation’s plain language. Thus, we agree with the ALJ that the regulation is
ambiguous. Canyon Fuel I, 38 FMSHRC at 2214. “Suitable for the safe evacuation of
miners” could modify either the “route” or the “mine opening.” Additionally, whether
conditions outside the mine may be considered in determining “suitability” for the safe
evacuation of miners is not clear from the text of the regulation.
2. Deference to the Secretary
Because the plain language of the regulation is ambiguous, “we defer to the
[Secretary]’s reasonable interpretations, even those advanced in his legal brief, unless
‘plainly erroneous or inconsistent with the regulations,’ or there is any other ‘reason
to suspect that the interpretation does not reflect the [Secretary]’s fair and considered
judgment on the matter in question.’” Mitchell, 775 F.3d at 1249 (quoting Chase
Bank, 562 U.S. at 208, 209). As discussed, the Secretary has interpreted the
regulation to require the consideration of two factors: 1) whether the escapeway is
“[l]ocated to follow the most direct, safe and practical route to the nearest mine
opening;” (practicality) and 2) whether that “mine opening” is “suitable for the safe
20
evacuation of miners” (suitability).8 30 C.F.R. § 75.380(d)(5). The Secretary has also
indicated that whether the mine opening is “suitable for the safe evacuation of
miners” takes into consideration conditions both inside the mine and outside the
mine.
Having already concluded that the Secretary’s interpretation is not precluded
by the plain language of the statute, we next consider whether deference to the
Secretary is inappropriate because the Secretary’s “current interpretation runs counter
to the intent at the time of the regulation’s promulgation,” Gonzales v. Oregon, 546
U.S. 243, 258 (2006) (internal quotation marks omitted). That intent may be
determined, at least in part, based on “the regulation’s history, the agency’s
contemporaneous explanation, and its consistently held interpretive views.”
Williamson v. Mazda Motor of Am., Inc.,
562 U.S. 323, 336 (2011); see Copar
Pumice Co. v. Tidwell,
603 F.3d 780, 794–95 (10th Cir. 2010) (determining whether
“an alternative reading [other than that of the Secretary] is compelled . . . by other
indications of the Secretary’s intent at the time of the regulation’s promulgation” by
referencing the regulatory history including responses to public comments). In
addition, “a regulation must be interpreted in such a way as to not conflict with the
objective of its organic statute,” Time
Warner, 381 F.3d at 1050, so a reading
contrary to the governing statute does not deserve deference. But “where there is an
8
For clarity, we refer to the first factor as an assessment of the practicality of
the route and the second factor as the suitability of the mine opening. When referring
to the comprehensive consideration of both practicality of the route and suitability of
the mine opening, we refer to the most acceptable escapeway—or acceptability.
21
interpretation of an ambiguous regulation which is reasonable and consistent with the
statute, that interpretation is to be preferred.” Emery Mining Corp. v. Sec’y of Labor,
744 F.2d 1411, 1414 (10th Cir. 1984) (internal quotation marks omitted).
a. History of the regulation
In 1977, Congress passed the Federal Mine Safety and Health Act to improve
safety and health in the nation’s mines. 30 U.S.C. § 801(a). As part of the statute,
Congress created MSHA to act on behalf of the Secretary of Labor to promulgate
safety and health standards, inspect mines, issue citations, and propose penalties for
violations. Id. §§ 811(a), 813(a), 814(a), 814(d), 815(a), 820(a). Congress also
created the Commission to review the actions of MSHA.
Id. § 823(a). ALJs hear
contests of citations initiated by mine operators and conduct initial hearings, while
the Commission has discretion to review the decisions of the ALJs.
Id.
§ 823(d)(2)(A)(ii). Further review by a federal court of appeals is allowed as a matter
of right.
Id. § 816(a).
The predecessor to the 1977 Act, the Federal Coal Mine Health and Safety Act
of 1969, required mine operators to maintain a primary and alternate escapeway,
which must be separate and distinct. Pub. L. No. 91-173, § 317(f)(1), 83 Stat. 742,
788 (1969). Congress required two escapeways because, in an emergency, one
escapeway may be inaccessible or untraversable. “Mine fires, extensive collapse of
roof, or similar occurrences may completely block the regular travelway . . . thus
cutting off escape in an emergency unless an alternate route is provided to the
22
surface.” S. Rep. No. 91-411, at 83 (1969). This requirement was retained in the 1977
Act:
[A]t least two separate and distinct travelable passageways . . . which
are to be designated as escapeways . . . shall be provided from each
working section . . . and shall be maintained in safe condition and
properly marked. . . . Escape facilities approved by the Secretary . . . ,
properly maintained and frequently tested, shall be present at or in each
escape shaft or slope to allow all persons, including disabled persons, to
escape quickly to the surface in the event of an emergency.
30 U.S.C. § 877(f)(1).
In accordance with this section, the Bureau of Mines developed standards for
escapeways and proposed rules addressing escapeways. 37 Fed. Reg. 26,422, 26,423–
24 (Dec. 12, 1972). The Bureau noted that “[b]ecause escapeways should permit
rapid exit from a mine in the event of an emergency, . . . the speed with which exit
can be achieved will be increased if escapeways are located to follow the most direct
route of travel to the nearest mine opening.” Id. at 26,424. The Bureau thus proposed
rule 75.1704-2(a), the predecessor to rule 75.380(d)(5), as “all travelable
passageways designated as escapeways . . . shall be located to follow the most direct
route of travel to the nearest mine opening.”
Id. But the rule as enacted included the
additional clause at issue here: “all travelable passageways designated as
escapeways . . . shall be located to follow . . . the safest direct practical route to the
nearest mine opening suitable for the safe evacuation of miners.” 38 Fed. Reg.
29,997, 30,000 (Oct. 31, 1973) (emphasis added). The Bureau noted that “[t]his
change was made to emphasize that not only the most direct route but also the safest
route must be considered in establishing escapeways.”
Id. at 29,998.
23
In 1988, MSHA proposed moving the rule to its current location and
recommended changes to the rule. 53 Fed. Reg. 2382, 2407–09 (Jan. 27, 1988). The
proposed rules included requirements for the marking, height, and width of
escapeways. Id. at 2408. Regarding § 75.1704-2(a), MSHA stated that “[e]scapeways
would be required to follow the most safe and direct practical route to the surface.
Impractical routes would therefore not be required to be designated, even though they
may be the shortest routes of travel.”
Id. As such, it proposed the rule that the
escapeways be “[l]ocated to follow the most direct and safe practical route to the
surface.”
Id. at 2422. The final rule required escapeways to be “[l]ocated to follow
the most direct, safe and practical route to the surface.” 57 Fed. Reg. 20,868, 20,926
(May 15, 1992).
During a later revision to the escapeways standards in 1996, MSHA noted
confusion over “whether MSHA intended that the existing rule eliminate the
requirement that escapeways be routed to the ‘nearest mine opening.’” 61 Fed. Reg.
9764, 9812 (Mar. 11, 1996). MSHA commented that it was not its “intent to change
[the] requirement from the previous standard. The existing requirement that the
escapeway follow the most direct route to the surface would, in fact, require the route
to go to the nearest mine opening.” Id. “[T]o eliminate any confusion,” it adopted
language similar to the previous rule.
Id. MSHA acknowledged that “the nearest mine
opening may not always be the safest route to the surface” and different “factors
affect whether or not the safest, most direct, practical route has been selected,” such
as “roof conditions, travel height, fan location, physical dimensions of the mine
24
opening, and similar considerations.” Id. It then gave a variety of examples of
situations in which the “nearest mine opening” may not be “suitable for safe
evacuation of miners,” such as roof falls, coal seam thickness, or old, deteriorated
mine shafts.
Id. at 9812–13. In response to a suggestion that MSHA require
escapeway plans to be approved “to assure the most direct route to the surface,”
MSHA responded that “inspectors assess whether escapeways follow the most direct,
safe and practical route to the surface during each regular inspection.”
Id. at 9813.
MSHA further noted that “[t]he escapeway should be appropriately located and
designed to be free of obstructions and hazards to assure safe passage from the
hazardous underground environment.”
Id. at 9810. The rule was thus changed to its
current form, mandating that escapeways be “[l]ocated to follow the most direct, safe
and practical route to the nearest mine opening suitable for the safe evacuation of
miners.”
Id. at 9843; 30 C.F.R. § 75.380(d)(5).
b. The parties’ contentions regarding the regulatory history
As noted above, in 1992, when MSHA rephrased the standard, it replaced
“nearest mine opening suitable for the safe evacuation of miners” with “surface.” 57
Fed. Reg. at 20,926. When it revised the standard again in 1996, it replaced “surface”
with “nearest mine opening suitable for the safe evacuation of miners.” 61 Fed. Reg.
at 9843. The Secretary argues that “MSHA’s consistent treatment of those words as a
unit shows that the phrase ‘suitable for the safe evacuation of miners’ modifies the
term ‘mine opening.’” Appellee’s Br. at 31. Further support for this argument,
according to the Secretary, is found in the preamble to the 1996 rule which states
25
“there can be other instances where the ‘nearest mine opening’ may not be suitable
for safe evacuation of miners.” 61 Fed. Reg. at 9813. Even if “evacuation” were
considered complete when a miner leaves the mine, the Secretary contends the
regulation requires more; it requires “safe evacuation.” If miners were “stranded on a
ledge, forced to descend a canyon and hike for miles through the woods, or forced to
scramble thousands of feet up a canyon wall,” they have not yet completed a “‘safe’
evacuation.” Appellee’s Br. at 35. Thus, the Secretary argues, Canyon Fuel’s
interpretation, which ignores surface conditions, “improperly reads out of the
standard the requirement that evacuations must be safe.” Id.
Canyon Fuel reads the regulatory history differently. It notes that the preamble
and examples related to suitability provided in the regulation each deal exclusively
with conditions inside the mine. See 61 Fed. Reg. at 9810, 9812–13. For example,
factors identified as relevant include “roof conditions, travel height, fan location,
physical dimensions of the mine opening, and similar considerations.” 61 Fed. Reg.
at 9812. And the regulatory history further provides that “there can be other instances
where the ‘nearest mine opening’ may not be suitable for safe evacuation of miners,”
such as “an old mine shaft” that is “not . . . safe for travel because of badly
deteriorated conditions, such as a deteriorated shaft lining or deteriorated timbers.”
Id. at 9813. Because all of these examples address conditions existing in the mine,
Canyon Fuel argues that only underground conditions are properly considered.
We are not convinced the Secretary’s “current interpretation runs counter to
the intent at the time of the regulation’s promulgation.” Gonzales, 546 U.S. at 258
26
(internal quotation marks omitted). Although it is true that much of the regulatory
history refers to conditions inside the mine, those references are not exclusive.
Nothing in the regulatory history prevents MSHA from considering the conditions
facing the miners upon exit from the mine. And the Secretary’s consideration of all
conditions of the escapeways, both inside and outside the mine, is consistent with
selecting the most acceptable escapeway—the one that best protects the health and
safety of the miners. Thus, the Secretary’s interpretation is consistent with the intent
of the regulation.
c. Consistency with the statute
Even if the Secretary’s interpretation of the regulation is otherwise reasonable,
we will not defer to it if that interpretation is in “conflict with the objective of its
organic statute,” Time Warner, 381 F.3d at 1050. “To test whether an agency’s
regulation conflicts with its governing statute, we employ the two-step analysis
mandated by Chevron. At the first step, we utilize ‘traditional tools of statutory
construction’ to ascertain whether ‘Congress had an intention on the precise question
at issue.’” Contreras-Bocanegra v. Holder,
678 F.3d 811, 816 (10th Cir. 2012)
(quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843 n.9
(1984)). “[T]he resolution of this threshold inquiry will be at least influenced, if not
determined, by how broadly we frame the ‘precise question.’” New Mexico v. Dep’t
of Interior,
854 F.3d 1207, 1222 (10th Cir. 2017) (quoting Bank of Am., N.A. v.
FDIC,
244 F.3d 1309, 1316 (11th Cir. 2001)). “If Congress’ intent is clear, ‘that is
the end of the matter.’”
Contreras-Bocanegra, 678 F.3d at 816 (quoting Chevron,
27
467 U.S. at 842). Only if “the statute is silent or ambiguous with respect to the
specific issue,” do we proceed to the second Chevron step and determine whether the
agency’s interpretation is “based on a permissible construction of the statute.”
Chevron, 467 U.S. at 843.
The Mine Act provision relevant here states: “Escape facilities approved by the
Secretary or his authorized representative, properly maintained and frequently tested,
shall be present at or in each escape shaft or slope to allow all persons, including disabled
persons, to escape quickly to the surface in the event of an emergency.” 30 U.S.C.
§ 877(f)(1). The “precise question at issue” is what determines whether an escapeway
allows miners “to escape quickly to the surface,” particularly whether it is appropriate to
consider surface conditions at the exit. At step one, we conclude that Congress did not
speak directly to this question; nothing in the statute speaks to whether conditions faced
by the miners on the surface may be considered.
Under step two of the Chevron analysis, we turn to the Secretary’s interpretation
of the regulation, which states that “escap[ing] quickly to the surface” is accomplished
through an escapeway that “follow[s] the most direct, safe and practical route to the
nearest mine opening suitable for the safe evacuation of miners.” 30 C.F.R.
§ 75.380(d)(5). Recall that the Secretary reads the regulation as requiring the
consideration of two factors in determining which escapeway is the most acceptable.
First, the Secretary must assess whether the route is the “most direct, safe and practical
route to the nearest mine opening.” Second, the Secretary must determine whether the
mine opening itself is “suitable for the safe evacuation of miners.” And in assessing the
28
suitability of the mine opening, the Secretary deems it appropriate to consider conditions
both at the surface and underground.
We hold that the Secretary’s interpretation of the regulation is a permissible
construction of the statute. It furthers the Mine Act’s goal of protecting the health and
safety of miners by considering all of the circumstances both above and below ground in
determining whether an escapeway is the most acceptable. Thus, the regulation as
interpreted by the Secretary does not conflict with the statute.
***
Because the Secretary’s interpretation of the regulation is reasonable, we defer to
that interpretation. The regulation thus requires the selection of the most acceptable
escapeway by considering: 1) whether the route is “[l]ocated to follow the most direct,
safe and practical route to the nearest mine opening”; and 2) whether that “mine opening”
is “suitable for the safe evacuation of miners,” in light of conditions inside and outside
the mine. 30 C.F.R. § 75.380(d)(5).9 We now consider whether the ALJ properly
concluded that Canyon Fuel violated the regulation by designating the 4 East Fan Portal
as the alternate escapeway at its Sufco Mine.
9
Canyon Fuel argues that the history of non-citation for the 4 East Fan Portal
escapeway shows that the current interpretation is inconsistent with prior
interpretations and thus undeserving of deference. However, the actions of the
MSHA District Office do not represent the Secretary’s interpretation of the
regulation. See United States v. Mead Corp., 533 U.S. 218, 233–34 (2001) (thousands
of decisions made annually by an agency’s “scattered” district offices do not have the
force of law); Serono Labs., Inc. v. Shalala,
158 F.3d 1313, 1321 (D.C. Cir. 1998)
(“But Chevron deference is owed to the decisionmaker authorized to speak on behalf
of the agency, not to each individual agency employee.”). Thus, the lack of citation
for over twenty years does not establish inconsistency with prior interpretations.
29
B. Evidence of § 75.380(d)(5) Violation
1. Substantial Evidence Standard
The ALJ’s factual findings regarding the occurrence of a § 75.380(d)(5)
violation are conclusive if they are supported by substantial evidence. See 30 U.S.C.
§ 816(a)(1) (“The findings of the Commission with respect to questions of fact, if
supported by substantial evidence on the record considered as a whole, shall be
conclusive.”).
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. Thus, we may not displace
the agency’s choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter been
before it de novo.
Plateau Mining Corp., 519 F.3d at 1194 (internal quotation marks omitted). “We neither
reweigh the evidence nor substitute our judgment for that of the agency.” Andalex Res.,
Inc. v. Mine Safety & Health Admin.,
792 F.3d 1252, 1257 (10th Cir. 2015) (internal
quotation marks omitted). “[O]ur review is very deferential to the agency.”
Id. (internal
quotation marks omitted).
To establish a violation of § 75.380(d)(5), however, “[i]t is insufficient for the
Secretary to merely cite the designated route as being out of compliance with the
regulation.” S. Ohio Coal, 14 FMSHRC at 1785. Rather, “it is the Secretary’s burden
to prove that, as compared to the designated route, there is at least one other
escapeway route that [he] has determined more closely complies with the standard’s
30
requirement.” Id. The Secretary must identify “a specific escapeway alternative that
more fully complies with [the standard’s] criteria than does the cited route.”
Id. Thus
the question before us is whether substantial evidence shows that the West Lease
Portal escapeway more closely complies with § 75.380(d)(5) than does the 4 East Fan
Portal escapeway. This entails a comprehensive comparison of both factors identified
in the regulation: which route is “[l]ocated to follow the most direct, safe and
practical route to the nearest mine opening” and whether the mine openings are
“suitable for the safe evacuation of miners.” Only after consideration of the relative
advantages and disadvantages of each escapeway as to both regulatory factors can the
Secretary make a rational choice between them. That is, the Secretary must evaluate
the relative acceptability of the proposed alternate escapeways by considering both
the practicality of each route and the suitability of each mine opening.
Upon review of the record as a whole, we conclude the Secretary failed to
engage in that comprehensive comparison and, therefore, substantial evidence does
not support a finding that the West Lease Portal is the more acceptable alternate
escapeway.
2. Application
According to the ALJ, “the Secretary established that Canyon Fuel’s route [the
4 East Fan Portal route] was deficient.” Canyon Fuel I, 38 FMSHRC at 2217. The
ALJ further explained:
The escapeway to the 4 East Fan Portal did not account for the fact that
miners would be stranded there once they exited the mine. This fact
would create a hazard to escaping miners particularly in cold or snowy
31
weather and more especially if any miners are seriously injured. The
Secretary presented a specific escapeway alternative he believes
provides for a safer, direct, practical route for escaping miners. The
Secretary took into consideration a number of factors, including those
discussed above. MSHA’s proposed escapeway is drivable for most of
its length and is mostly in a separate intake air course. This air course
would not be affected by a fire in the working section or the belt.
Although the alternative escapeway favored by the Secretary is longer
than Canyon Fuel’s, it is similar in length to the primary escapeway.
[Ms.] Yeager traveled the Secretary’s proposed route and testified that
the overcasts are not difficult to negotiate, noting that there were well-
built stairs. The Secretary acknowledges that if SCSRs are needed,
miners will need to change them out more frequently using the West
Lease Portal escape route. Finally, any escaping miners[,] who must
remain at the 4 East Fan Portal for a period of time before they can be
rescued, could be overcome by smoke and toxic fumes. The Secretary
maintains that in considering all the factors set forth in the safety
standard, his designated alternative escapeway is the safest direct
practical route.
Id. at 2217–18 (citation omitted).
It is unclear from the ALJ’s opinion whether he found the 4 East Fan Portal
mine opening “[un]suitable for the safe evacuation of miners” or whether he found
the opening suitable but also found the West Lease Portal escapeway more
acceptable.10 We need not resolve this issue because under either analysis, the
decision is not supported by substantial evidence.
10
The Secretary reads the ALJ’s decision as finding the 4 East Fan Portal
unsuitable both in his brief before the Commission and in his brief before us. And
that is also the view taken by the affirming commissioners. Sec’y of Labor, Mine
Safety & Health Admin. v. Canyon Fuel Co., 39 FMSHRC 1578, 1588 n.11 (2017)
(“Canyon Fuel II”) (affirming commissioners) (“The termination point of this
escapeway failed to provide for ‘safe evacuation of miners,’ as the standard requires,
and thus was not ‘suitable.’”). But the reversing commissioners did not view the
ALJ's opinion in that manner. They rejected the “assert[ion] that the Secretary’s
representative did make a determination that the [4] East Fan Portal route was per se
unsuitable because it would not safely evacuate the miners” and instead noted that
32
Even accepting that a mine opening must be at least minimally “suitable for the
safe evacuation of miners” before it can be considered as part of an acceptable alternate
escapeway, the record evidence must allow for such a conclusion. For example, if an
escapeway plunges to the canyon floor or leads to a shelf so small that it cannot
accommodate all of the escaping miners, the Secretary may not be required to look
beyond the mine opening’s unsuitability to prove a violation of § 75.380(d)(5).11 But
such situations are rare and in the vast majority of cases, the Secretary must make a
comprehensive comparison of both the practicality of the routes and the suitability of the
mine openings to determine that one escapeway is more acceptable than another. As
previously discussed, the text and history of the escapeways statute and regulations are
focused on underground conditions, including with respect to the suitability of mine
openings. See supra Sections II.A.1.b, II.A.2.a. Although we have concluded this focus
does not preclude the Secretary from also considering above-ground conditions, not even
the Secretary suggests that he can consider such above-ground conditions to the exclusion
of underground conditions. Instead, the Secretary has argued that “[w]hether a mine
opening is ‘suitable for the safe evacuation of miners’” is “an analysis that must take into
account conditions both underground and at the surface.” Appellee’s Br. at 26 (emphasis
added). And the Secretary acts arbitrarily if he “entirely fail[s] to consider an important
this was “not a case of self-evident unsuitability.”
Id. at 1593 & n.12 (reversing
commissioners).
11
Even where a cited alternate escapeway does not lead to a suitable mine
opening, it is possible that the proposed alternate escapeway is also deficient either
due to a similarly unsuitable mine opening or due to a completely impractical route.
33
aspect of the problem.” Ariz. Pub. Serv. Co. v. U.S. E.P.A., 562 F.3d 1116, 1123 (10th
Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins.
Co.,
463 U.S. 29, 43 (1983)). That is what happened here.
Considering only above-ground conditions can also lead to absurd results.
Suppose that, instead of the hospital being located fifty miles from the West Lease
Portal, it is located fifty feet away. This would make the surface conditions at the
West Lease Portal quite beneficial, especially compared to the 4 East Fan Portal. But
also suppose the underground escapeway leading to the West Lease Portal is one
hundred miles long instead of six miles long and includes numerous overcasts or
heightened risk of contaminated air. The Secretary’s piecemeal consideration of only
above-ground conditions at the mine openings leads to the conclusion that the West
Lease Portal is “suitable” while the 4 East Fan Portal remains “unsuitable,” despite
the significant potential hazards posed by a much longer underground trek. The
Secretary must perform a holistic analysis and consider both the underground and the
surface conditions at the West Lease Portal and its route and compare those
conditions with the corresponding surface and underground conditions of the 4 East
Fan Portal and its route to properly determine which escapeway is most acceptable
because it is located to follow “the most direct, safe and practical route to the nearest
mine opening suitable for the safe evacuation of miners,” 30 C.F.R. § 75.380(d)(5)
(emphasis added).
Here, there is not substantial evidence to support a finding that the 4 East Fan
Portal is per se “[un]suitable for the safe evacuation of miners.” As the Secretary
34
admits, suitability of the mine opening “depends on conditions both underground and
at the surface.” Appellee’s Br. at 24 (emphasis added). To be sure, the surface
conditions at the 4 East Fan Portal are not ideal—potentially leaving injured miners
stranded inside the fan house for some indeterminate period until the weather permits
helicopter evacuation or forcing them to make challenging ascents or descents,
possibly through a foot or more of snow, to seek medical assistance that is still miles
away. This evidence may show the 4 East Fan Portal is less suitable than the West
Lease Portal; however, it does not show that the 4 East Fan Portal is unsuitable.
Miners may be stranded on the shelf awaiting rescue from a helicopter, Canyon Fuel
I, 38 FMSHRC at 2217, but there are multiple buildings in which they could wait
pending rescue. The fan house is warm all year round when the fan is running,
includes first aid and communication equipment, and would fit all the escaping
miners. Id. at 2211. And when conditions are favorable, a helicopter could transport
the miners to medical care. As an alternative, the miners could traverse the cattle trail
to the gravel road or the path to the top of the canyon to the Forest Service road for
medical transportation. Miners can evacuate safely from the 4 East Fan Portal and
thus it is at least minimally suitable. Therefore, the Secretary was required to make a
comprehensive comparison between the two proposed escapeways before selecting
the most acceptable.
And because the 4 East Fan Portal is at least minimally suitable, the ALJ’s
finding that the West Lease Portal escapeway is the most acceptable is not supported
by substantial evidence. The record lacks any meaningful comparison by the
35
Secretary of the two alternate escapeways: the 4 East Fan Portal escapeway and the
West Lease Portal escapeway. Instead, the Secretary presented evidence at the
administrative hearing focused on the difficulty of evacuating miners from the ledge
at the 4 East Fan Portal, almost to the exclusion of evidence about the comparative
underground conditions of the two proposed alternate escapeways. See, e.g., Joint
App. at 8 (opening statement of Alicia Truman: “[A]lthough that route may be the
shortest, most direct way to a mine exit, it did not lead to a mine opening suitable for
the safe evacuation of miners.”); id. at 16, 20 (testimony of Mr. Riley: “Q: And why
do you believe that the 4 East fan portal is not mine opening [sic] suitable for the safe
evacuation of miners? A: Because once miners would come out there, there is no
reasonable means to get the miners, including disabled miners, off of the canyon
edge,” and “[T]his 4 East ledge is not suitable for the safe evacuation of miners.”);
id. at 45 (testimony of James Preece: “Q: Okay. After personally viewing the portal
area to the 4 East fan, did you form any opinions as to whether that mine exit was
suitable for the safe evacuation of miners? A: I did. Q: And what conclusion did you
draw? A: It would not be suitable.”). Indeed, at various times, the Secretary
compared its proposed alternate escapeway with the primary escapeway, rather than
with the 4 East Fan Portal route. See, e.g.,
Id. at 39 (testimony of Mr. Riley: “Q: . . .
How does that distance compare to if miners now had to carry an injured miner out of
the mine’s primary escapeway? A: It would be the same distance.”); Appellee’s Br. at
52 (“The West Lease route is longer than the 4 East Fan route, but it is no longer than
36
the primary escapeway route.”). But in so doing the Secretary has improperly omitted
half of the required analysis.
The failure to make a comprehensive comparison between the two proposed
escapeways can also result in misleading information. For example, the distance to
potential medical transportation between the two routes is much closer than the
Secretary argues: for the 4 East Fan Portal route, miners must travel between 6 and 7
miles (2.34 miles underground and between 4 and 5 miles on the cattle trail) and for
the West Lease Portal route, miners must travel 5.88 miles (all underground).12
Contrary to the Secretary’s assertions, the proper comparison is not between
immediate evacuation at the West Lease Portal and a four to five mile trek at the 4
East Fan Portal. Instead, selection of the most acceptable escapeway requires careful
assessment of the entire escape odyssey—from the moment of the hypothetical mine
emergency to the provision of medical services to the evacuated miners. To be sure,
substantial evidence supports a finding that the surface conditions at the 4 East Fan
Portal are less suitable than the corresponding surface conditions at the West Lease
Portal. But that is only part of the analysis: the regulation requires consideration of
those limitations in conjunction with whatever advantages or disadvantages the 4
East Fan Portal route may offer within the mine, and then a comparison of those pros
and cons with the same information about the Secretary’s preferred alternate route—
12
The only evidence comparing this aspect of the two routes is that the four to
five mile trek after exiting the 4 East Fan Portal would take two hours without snow
or injury while the West Lease Portal escapeway would take three hours without an
emergency or injury. This is, of course, assuming that a helicopter would be unable
to rescue the miners from the 4 East Fan Portal.
37
the West Lease Portal. The evidence necessary to make this comparison simply was
not presented to the ALJ.
It is uncontroverted that the 4 East Fan Portal is the “most direct” route out of
the mine. See, e.g., Joint App. at 8 (opening statement of MSHA: “[A]lthough [the 4
East Fan Portal route] may be the shortest, most direct way to a mine exit . . .”); id. at
31 (testimony of Mr. Riley: “It is the shortest route out. . . . I would say it’s the most
direct route out.”);
id. at 58 (testimony of Sydel Yaeger: Q: . . . [T]he quickest—the
shortest route out from 5 West is to come out the 4 East portals, isn’t that right? A:
Yes. Q: And it’s the most direct; isn’t that right? A: Well, yeah, shortest, direct.”).
And the objective indicators of the “difficulty” of traversing the paths suggest that
the 4 East Fan Portal route, at least while underground, may also be the most
practical and safe. It “is shorter, requires fewer SCSRs to be available, and requires
fewer overcast crossings.” Appellee’s Br. at 53. Furthermore, it has fewer turns than
the proposed West Lease Portal route, which has “some turns.”
Id.
The Secretary made little effort to present evidence comparing the
underground conditions of the two escapeway routes. Instead, the Secretary presented
evidence of the proposed alternate escapeway in isolation and, to some extent, in
comparison with the primary route or with the above-ground conditions at the 4 East
Fan Portal. For example, while there is evidence that the proposed West Lease Portal
escapeway could be traversed in three hours under ideal conditions, Canyon Fuel I,
38 FMSHRC at 2212, there is no evidence of how long it would take to traverse the 4
East Fan Portal escapeway in similar conditions, or how long either route would take
38
in an emergency. Because the 4 East Fan Portal route is over 3.5 miles shorter than
the West Lease Portal route, and contains fewer turns, overcasts, and SCSR change-
outs, that information might well have impacted the ALJ’s analysis.
The record did not permit the ALJ to assess the advantages of traveling the 4
East Fan Portal route as opposed to the West Lease Portal route, if any. And because
of that gap, the ALJ never weighed the benefits of exiting the mine more quickly
along the 4 East Fan Portal route, with a potentially indeterminate wait for
transportation to medical facilities at the mine opening, against the benefits of
receiving medical care more quickly, but first enduring a longer and possibly more
difficult journey to exit the mine. Depending on the circumstances, attaining the
surface quickly may be of paramount importance, whereas in other instances the
opposite may be true. Compare for example a situation where the air within the mine
has become contaminated by methane gas, with a situation where an isolated collapse
has blocked the main escapeway and caused life-threatening injuries to one or more
miners. In the first case, the fastest route to the surface may be preferable, even if the
wait for medical care at the mine opening is longer. In contrast, where significant
medical attention is needed, as in the second example, the ability to transport the
miners quickly to a medical facility may be most important. In sum, mining disasters
come in different forms and it is no small burden to predict whether the next
emergency would be best served by the fastest route to the surface or the fastest route
to medical services. Had the ALJ been presented with and considered all the relevant
facts, it would not be our place to second guess his decision with respect to that
39
difficult choice. But the record did not allow for such a comprehensive analysis. As a
result, the ALJ’s finding that the West Lease Portal escapeway is more acceptable
than the 4 East Fan Portal escapeway is not supported by substantial evidence.13
III. CONCLUSION
We AFFIRM the Secretary’s interpretation of the regulation. Because
substantial evidence does not support the ALJ’s finding that Canyon Fuel violated the
regulation, we REVERSE the decision of the ALJ and VACATE the citation.
13
Nothing in our decision is intended to suggest that the 4 East Fan Portal
escapeway is more acceptable than the West Lease Portal escapeway. Nor do we
imply that, with the proper evidentiary record, the Secretary could not establish a
violation of the regulation at the Sufco Mine. The potential for miners, including
those seriously injured in the process of escaping an underground disaster, to be
trapped on a ledge in cold or snowy weather is legitimate cause for concern. But any
decision that another escapeway is more acceptable must be based on an evidentiary
record that permits a comparison of the relative practicality of the proposed route, as
well as the suitability of the mine opening.
40
