Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Canyon Fuel Company, LLC v. Secretary of Labor

United States Court of Appeals, Tenth Circuit

July 10, 2018

CANYON FUEL COMPANY, LLC, Petitioner,
v.
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 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 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 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 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.

         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 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.

         (Image Omitted)

         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 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 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 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.

         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 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.