PUBLISH

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CANYON FUEL COMPANY, LLC, 

 Petitioner, 

v. 

SECRETARY OF LABOR; FEDERAL 

MINE SAFETY AND HEALTH REVIEW 

COMMISSION, 

 Respondents. 

No. 17-9541 

_________________________________ 

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. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 10, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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 
4 

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 
5 

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 
6 

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. 
7 

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 
8 

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. 
9 

Primary Escapeway 

4 East Fan Portal/West Lease Portal Shared 

Point of Divergence 

4 East Fan Portal Escapeway 

West Lease Portal Escapeway 

Working Sections 

Exit 

Exit 
10 

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 landtravelling 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_
11 

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-MSA8 (Assistant Sec’y of Labor Nov. 21, 2017). 
12 

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 
13 

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. 
14 

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 
15 

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 
16 

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 
17 

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 
18 

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. 
19 

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). 
20 

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 
21 

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. 
22 

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 
23 

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. 
24 

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 
25 

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 
26 

“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 
27 

(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, 
28 

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 
29 

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. 
30 

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 
31 

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 
32 

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 wellbuilt 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 
33 

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. 
34 

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 
35 

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 
36 

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 
37 

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. 
38 

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 
39 

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 changeouts, 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 
40 

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.