Petition for Review of an Order from the Federal Mine Safety
and Health Review Commission (MSHR No. West 2015-635)
Henry Moore, II (Patrick W. Dennison with him on the briefs),
Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for Petitioner.
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.
MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
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.
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.
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.
The 4 East Fan Portal Escapeway
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
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.
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.
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.
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.
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
The West Lease Portal Escapeway
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. 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,  which may increase the hazard to escaping
miners. Id. at 2213.
the exception of the first part of the route, the West Lease
Portal escapeway is in intake air,  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. 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.
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
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.
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. 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."
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).
Fuel timely filed this Petition for Review, challenging only
Citation No. 8483766.
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).
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.
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.
Interpretation of the Regulation
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).
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 ...