# Unite d States Court of Appe als

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Arg ued F ebrua

ry 14, 2013 Dec ided J une 7, 2013

No. 11-1464

C U M B E R

L A N D C O A L R E S O U R

C E S , L P, P E TI TI O N E R

v.

F E D E R A L M I N E S A F E TY

A N D H E A L TH R E V I E W C O M M I S S I O N
A N D S E C R

E TA R Y O F L A B O R , R E S P O N D E

N TS

U N I TE D M I

N E W O R

K E R S O F A M E R

I C A , I N TE R V E N O R

On Petition for Review of a Dec ision of the Fe dera l Mine Safety

and He alth Review Commission

Ralph Henry Moore II arg ued the cause for petitioner. Wit h him on the briefs wa s Patrick W . Dennison

.

Robin A. Rosenbluth

, Senior Attorney
, U.S. Depa rtment of L abor, arg ued the cause for respon dent. Wit h him on the brief

wer e W

. Christ ian Schumann

, Counsel. John T. Sullivan

, Attorney
, Mine Safety and Hea lth Review Commi ssion, enter ed
an appe ara

nce.

Judith Rivlin and Arthur T r a ynor wer e on the brief for intervenor United Mine Workers of Americ a in support of2

responde nt.

Be fore : R O G E R S and T A TE L , Circuit Judges

, and S E N TE L L E , Senior Circuit Judge

. Opinion for the Court filed by Senior Circui t Ju d g e S E N TE L L E

.

S E N TE L L E , Senior Circuit Judge : This case comes before

u s o n a petition for revie w of the Fe dera l Mine Safety an d Hea lth Review Commi s s i on’s deter mination that Cumberland Coal Resource s, L P’s failure to maintain adequ at e emer g ency lifelines in its mine’s es ca p eway s was a signific ant and substantial violation of the Fe dera l Mine Safety and Hea lth Act of 1977 (“Mine Act”)

, 30 U.S.C. § 814(d)( 1). Cumberland
arg ues that the Commi ssion applied the wrong standard when it

reve rsed an administrative law judge ’s (“A L J ’s”) deter mination that the violations wer e not signific ant and substantial, and that

even if it applied the corr ect standard, its fi n d i n g s are not

s u p ported by substantial evidenc e. Be cause we conclude th at the Commi ssion applied the corr ect standard and that substantial evidenc e supported its finding s, we deny Cumberland’s petition for r eview.

I. BACKG ROUND

A. Statutory and Regulatory Back ground

I n 1977, Congr ess enac ted the Fe dera l Mine Safety and Hea lth Act for the purpose of improving the working conditions of miners. 30 U.S.C. § 801. Under the Act, inspectors from the Mine Safety and Hea lth Admin istration (“MSHA” ), acting on behalf of the Secre tary of L abor, conduct reg ular compliance i n s p ec t i o n s of mines. 30 U.S.C. § 813(a)

. When an inspector believes that the opera tor of a mine has vi o l at ed the Act or3

enforceable regulations promulgated pursuant to the Act, the inspector is authorized to issue citations for such violations and, in appropriate cases, to issue orders to withdraw personnel from the mine until “such violation has been abated.” 30 U.S.C. § 814(b). Section 814(d)(1) provides that if the authorized representative of the Secretary finds that there has been a violation of a mandatory health or safety standard and also finds that the violation “is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard,” then the inspector is to include that finding in the citation issued for the violation. Such a finding of a significant and substantial violation (often referred to as an “S&S violation”) is a precondition for enhanced enforcement actions under the Mine Safety Act. See 30 U.S.C. § 814(d) (discussed and applied in RAG Cumberland Resources LP v. FMSHRC , 272 F.3d 590, 592 93 (D.C. Cir. 2001)).

The violations at issue in this case arose under amendments to the Mine Safety and Health Act enacted in response to three multiple-fatality mine disasters, in which miners who were unable to evacuate mines died. Specifically, the Mine Improvement and New Emergency Response Act of 2006 (“MINER Act”), amended 30 U.S.C. § 876 to require operators to provide flame resistant and directional lifelines in escapeways “to enable evacuation.” MINER Act Section 2(3)(b)(E)(iv), Pub. L. No. 109-236 (S. 2803) (June 15, 2006), codified at 30 U.S.C. § 876(b)(2)(E)(iv). Also in the wake of the disasters, MSHA issued an Emergency Temporary Standard on emergency mine evacuations in March 2006. 71 Fed. Reg. 12252 (Mar. 9, 2006). This standard became a final rule on December 8, 2006. 71 Fed. Reg. 71430 (Dec. 8, 2006). That rule requires operators to provide each mine escapeway with a lifeline that is “[l]ocated in such a manner for miners to use effectively to escape.” 30 C.F.R. § 75.380(d)(7)(iv). Each lifeline must be equipped with directional indicators showing the route of escape, indicators4

marking a branc h line that is attache d to the lifeline and leads to

a cac he of stored self-c ontained self-r escue rs p ro v i ding brea thable air for emer g encie s, and indicators marking a branc h line attache d to the lifeline and leading to a ref ug e alterna tive for miners unable to e scape . 30 C.F.R. § 75.30(d)( 7)(v) , (vii).

I n Dec ember 2 0 07, obedient to the statutory require ment that the Secre tary or his repr esenta tive conduct fre quent inspections of mines to ensure compliance with mandatory safe ty standards, Thomas J

. Whit ehair I I
, Special I n vestig ator for the Depa

rtment of L abor’ s Mine S af et y and Hea lth Administ ra t i on, conducte d an inspection of the Cumberland Mine near Way

nesburg

, Penn s y

lvania. Whit ehair inspected four of the mine’s esca

pewa y s over a four- day period and issued a citation for eac h, alleg ing violation of the lifeline require ment of § 75.380(d)( 7)(iv). He further desig nated eac h violation as signific ant and substantial, finding that the l ac k o f adequate lifelines would have delay ed miners esca ping from an

emer g ency , which would have been rea sonably likely to result in serious injury

or dea th.

B. The Administrative Procee dings

On April 11, 2008, the Secre tary filed a petition for
assessment of civil penalty for the violations. Cumberland contested the citations befor e an administrative law judge

, who deleted the signific ant and substantial desig nations o n J anuar y 21, 2011. See 33 FMSHRC 1482. There afte r, the Commi ssion hear d the peti tion for revie w and g rante d the petition. The C o m m i ssion reve rsed and rema nded to the AL J for th e imposit ion of penalties. On October 25, 2011, the AL J issued

a decision on rema

nd imposing penalties. After the Commi ssion denied Cumberland’s petition for discretionar y revie w, Cumberland filed the prese nt petition for revie w with this court on November

29, 2011.5

Because our review is dependent in part on the sufficiency of the evidence in the administrative proceedings, we will set forth the relevant evidence in some detail, as well as make further references to the record in our analysis. The evidence was presented in the testimony of Inspector Whitehair relating his findings and conclusions in the four-day visit to the mine in December 2007. Whitehair first testified as to his experience in mining and mine safety. According to that testimony, he had twenty-two years experience inspecting mines for MSHA and an additional fourteen years experience working in mines, including in mine safety positions. He then testified as to his findings of violations at the Cumberland Mine.

1. The Violations

a. The December 6, 2007, Violation

Whitehair testified that he inspected the No. 1 belt entry of the Five Butt East Longwall section on December 6, 2007. He found three violations in the provision of that lifeline which would have delayed miners in escaping in the event of an emergency. First, it was hung so high from the mine floor that it would have been difficult or impossible for many miners to reach. Second, it was suspended from J-hooks that pointed in different directions. And third, cables and waterlines ran underneath and perpendicular to it.

Whitehair further testified that these conditions would have delayed miners in escaping from an emergency. First, because many would have found the lifeline out of reach, they would have needed to use a tool to access it. Second, miners would have been forced to use that tool to flip the lifeline off the J-hooks, which were pointed in all directions a task Whitehair testified “would take considerable doing and a considerable amount of time.” Third, once off the hooks, the lifeline would6

fall on top of the water lines and cable s that ran underne ath and
perpe ndicular to it, requiring miners to rele ase the lifeline and

sear ch for it on the other side of the cable s and wa terlines.

Whit ehair further

testified that this delay

would have be en

rea sonably likely to result in i n j u ry

. He believed that in the
event of an emer g ency during which miners would need a lifeline, they would not be able to esc ape and would eventua lly succumb to car

bon monox ide poisoning. The AL J cre dited that testimony

.

b. The Dec embe r 7, 2007, Dec embe r 10, 2 007,

and Dec embe r 11, 2007, Violations

The evidenc e is simil ar with respe ct to the other three violations. Whit ehair testified that on Dec ember 7, 200 7
, t h e lifeline in the No. 2 trac k entry for the Five Butt East L ong wall hung out of rea ch for many miners throug hout most of the trac k entry

. He also observe d trac k equipment, cable s, and water lines under the lifeline.

Whit ehair t es tified that on Dec ember 10, 2007, he observe d that t h e lifeline in the No. 2 trac k entry of the Eig ht Butt East section was h u ng high and out of rea ch for many miners throug hout most of the trac k entry

. He also observe d
trac k equipment, ca

bles, and wa terlines under the lifeline.

On Dec ember 11, 2007, Whit ehair found nearl y the entire lifeline in the No. 2 trac k entr y o f t h e Fifte en Butt East section h u n g h i gh and out of rea ch for many miners. He also testified that it was suspende d over tra ck equipment.

Whit ehair testified that the trac k equipment under the lifeline would delay miners attempting to esca pe an emer g ency

. I n thick smoke, the lead miner would be blinded and would run7

into the track equipment. That could injure him or rupture his self-contained self-rescuer the portable oxygen source providing breathable air that each miner should have during an emergency exposing him to deadly smoke. Even if the lead miner was unscathed, running into track equipment would delay all the miners attempting to escape. Furthermore, Whitehair testified that the lifeline could snag on the track equipment, causing further delays as panicked, blinded miners attempted to free it. Even if miners knew the track equipment was in their path, they would have to proceed more slowly than they otherwise would to avoid it in the smoky darkness, which would delay their escape. Whitehair also testified that the lifelines falling on cables and waterlines would delay miners escaping. As he had with the first violation, Whitehair testified that he designated these three violations significant and substantial because the delays he described would be reasonably likely to make it impossible for a miner to escape an emergency, meaning the miner would eventually succumb to carbon monoxide poisoning.

In short, based on his other findings, Whitehair found that each of the four violations was significant and substantial.

C. The Administrative Decisions

As noted above, the administrative law judge, while crediting and adopting the inspector’s underlying findings, rejected the findings of significant and substantial violations. 31 FMSHRC at 1163 64. The Commission then reversed the ALJ on the significant-and-substantial issue in the decision that we review today.

The ALJ and the Commission differ over an issue of basic understanding of the statutory and regulatory requirements for determining the significant and substantial status of a violation.8

As the Secretary states in his brief to us, “the issue [is] whether, in evaluating whether a violation of Section 75.380(d)(7)(iv)’s requirement regarding the location of lifelines ‘is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard’ within the meaning of Section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1), one should assume the occurrence of an emergency necessitating an evacuation in which the lifeline would need to be used.” Respondent’s Br. 22 23. The answer to this question is essential to the decision of the case and any other case involving violations of statutory and safety regulations created to protect miners and reduce danger during evacuations.

The ALJ adopted a view that Whitehair and the Commission acted inconsistently with Commission precedent in determining that the violations were significant and substantial. The ALJ relied in making that determination, and Cumberland relies before us, on language from Secretary of Labor v. Mathies Coal Co. , 6 FMSHRC 1, 3 4 (1984), to the effect that in order to prove a significant and substantial violation the Secretary must prove:

(1) [T]he underlying violation of a mandatory safety standard; (2) a discrete safety hazard that is, a measure of danger to safety contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

The ALJ ruled that the Secretary had failed to establish the third element of the Mathies test a reasonable likelihood that the hazard contributed to by the violations would result in an injury. 31 FMSHRC at 1163. According to the ALJ, the Secretary had failed to prove that there was a reasonable likelihood that an emergency situation would arise, and9

therefore it was not reasonably likely that the hazard contributed to miners being delayed in escaping from an emergency would result in an injury.

The Commission unanimously reversed the ALJ and held that all four lifeline standard violations were significant and substantial. The Commission interpreted the statute and regulation to require assessment of the reasonable likelihood of injury in the circumstance in which the safety equipment becomes relevant. That is, evacuation standards, such as those before the Commission and now before us, “apply meaningfully only when an emergency actually occurs.” 33 FMSHRC at 2367. After the ALJ on remand increased the penalties for each violation to account for the significant and substantial findings, Cumberland filed this petition.

II. ANALYSIS

While Cumberland in its brief before us alleges five issues, our review neatly falls into two parts: (1) did the Commission properly interpret the statutory and regulatory requirement of significant and substantial violation for enhanced penalties?; and (2) if the Commission applied the correct standard, was there sufficient evidence to support the Commission’s decision? We discuss those two issues in turn.

A. The Significant and Substantial Standard

The Mine Act requires the Commission to adjudicate challenges by mine operators to citations and orders issued by the Secretary. See 30 U.S.C. § 813. The Commission must defer to “the Secretary’s interpretations of the law and regulations.” Sec’y of Labor v. Cannelton Indus., Inc. , 867 F.2d 1432, 1435 (D.C. Cir. 1989) (internal quotation marks omitted). On review, this court must defer to the Secretary’s reasonable10

interpre tations of the lang uag e of the Mine Act. Id

. (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.
, 467 U.S. 837 (1984))

. “[I ]n the statutory s ch eme of the Mine Act, the Secre tary ’s litigating position befor e the Commi ssion is as much

an exercise of deleg ated lawmaking power s as is the Secre tary ’s
pro m u l gat i o n of a

. . . health and safe ty standard, and is there fore deser

ving of defe renc e.” Sec’ y of Labor v. Exc el Mining, LLC
, 334 F.3d 1, 6 (D.C. Cir. 2003) (interna l quotation marks omitted). Where, as here

, th e Secre tary and the Commi ssion ag ree , there is no question but that we must acc ord defe renc e t o t h eir joint view. RAG Cumberland Res. LP v. FMSHRC , 272 F.3d 590, 596 ( D.C. Cir. 2001).

We analy

ze the S ecr etar

y ’s and the Commi ssion’s interpre tations of the Mine Act under the Chevron fra mework. Id. Under that familiar standard, “this court, of course , must g ive eff ect to the unambig uously expressed intent of Congr ess.” Cannelto n Indus., Inc.
, 867 F.2d at 1435 (interna l quotation mark s o m itted). I f “the statute is silent or ambig uous with
respe ct to the specific issue,” the court defe rs to the Secre tary ’s interpre tation provided the interpre tation is “‘a permissible construction of the statute.’” Id. (quoting Chevron

, 467 U.S. at 843).

30 U.S.C. § 814(d )( 1 ) provides that a signific ant and substantial violation is one that is “of such nature as co uld signific antly and substantially contribute to the cause and eff ect of a coal or other mine safe ty or health hazard.” We fi rst consider the Secre tary ’s ar gument that this lang uag e unambig uously expresses Congr ess’s i ntent to require decisionmake rs evalua ting the signific ant and substantial nature of violations of emer g ency s af ety standards such as § 75.380(d)( 7)(iv) to a ssume the exis tence of the c ontemplated

emer g ency

.11

The Secretary argues that Congress’s use of the words “could” and “contribute” and the phrase “cause and effect” to describe significant and substantial violations unambiguously compels his interpretation. Specifically, the Secretary argues that “it is impossible to determine whether the violations of Section 75.380(d)(7)(iv) significantly and substantially contributed to the cause and effect of the hazard in question miners being unable to escape quickly from a mine during an emergency in which miners would need to use the lifeline without assuming the occurrence of such an emergency.” Respondent’s Br. 27. The Secretary also argues that the word “could” refers to the violation’s intrinsic capacity to contribute to the hazard, not to any specific probability that it will. Id. at 28 (quoting United States v. Peterson , 538 F.3d 1064, 1072 (9th Cir. 2008)). Although the Secretary does not flesh this argument out, he appears to mean that because intrinsic capacity is enough, a violation of an emergency safety standard can be significant and substantial even if an emergency is not likely.

We do not think the Mine Act’s language unambiguously compels the Secretary’s interpretation. The Secretary’s argument that “could” refers to intrinsic capacity rather than probability overlooks the fact that the statute refers to a violation that could “ significantly and substantially contribute to the cause and effect of a . . . hazard.” 30 U.S.C. § 814(d)(1) (emphasis added). Because the two adverbs inherently suppose a degree of contributing, we cannot hold that the language unambiguously excludes a probabilistic approach to the factfinder’s determination that a particular violation falls within the ambit of the statutory language. We therefore reject the Secretary’s proposition that his interpretation can be upheld under the first prong of Chevron

.12

Perhaps in the evaluation of the possible significant and substantial nature of a violation of general safety standards not contemplating an emergency, the Secretary and the Commission might focus exclusively on the propensity of the violation to “contribute to the cause and effect” of a safety or health hazard. But violations of emergency safety standards raise a different set of problems. Those standards and specifically, the standards effectuating the MINER Act’s protection of escape protect specifically against hazards that may arise after an emergency has already occurred. Despite that fact, inspections determining the compliance of mine operators with the standard must be made in the absence of the contemplated emergency. Therefore, in the view of Cumberland and the ALJ, the Secretary should weigh the probability variable independent of the violation, that is, of the probability of a hazard arising in the first place. On that issue, § 814(d)(1) is silent. We cannot, therefore, say that the intent of Congress is clear and unambiguous so as to allow the invocation of Chevron step one.

It may be, as the Secretary argues, that the term “hazard” in § 814(d)(1) accounts for the probability of an emergency occurring because the hazard in this case can only be stated in terms that assume the existence of an emergency. But it may also be, as Cumberland argues, that the phrase “could significantly and substantially contribute,” which calls to mind an evaluation of chance, properly accounts for all probability variables in any given significant and substantial evaluation, including the probability of an emergency occurring. We therefore proceed to the second step of the Chevron analysis and evaluate the reasonableness of the Secretary’s interpretation.

Although the statute does not unambiguously compel the Secretary’s interpretation, that interpretation is nonetheless reasonable. As the Commission explained, emergency safety standards are fundamentally different from non-emergency13

standards beca

use they are desig ned to apply meaning fully only in times of emer g ency

. I f the Secre tary interpre ted, or if we compelled the Secre tary t o interpre t, § 814(d)( 1) to command decisionmake rs not to assume the exis tence of the contemplated

em er gency when evalua ting the signific ant and substantial
nature of a violation o f em erg ency safe ty standards, it would
appea r unlikely that any violation of those standards would ever be “significa

nt and subst antial.” That is, the vi olation of t hose stand ar d s appar ently would never , or at least rar ely

, contribute
to the exis tence of the emer g ency so that the sca l e wo u l d be loaded ag ainst the finding

. Given that t h e v i o lation of those standards could be expected to have serious, indeed trag ic,
conseque nces, it i s rea sonable for the S ecr etar y to interpre t the statute and his own re g ulations to avoid that odd result.

To exp an d on that thought, the interpre tation advanc ed by Cumberland would be inconsistent with our prio r h o lding that the signific ant and substantial inquiry should focus, as the statutory text direc ts, on the nature of the violation. S ec ’y of Labor v. FMSHRC
, 111 F.3d 913, 917 (D.C. Cir. 1997). Ag ain,

a violation of the lifeline standard could only contribute to the delay ed evac uation from emer g ency h az ar d if there is an

emer g ency , but the likelihood of an emer g ency will usually have

no thing to do with the violation of the emer g ency safe ty standard. Thus, if t h e d ecisionmake r does not assume the exis tence of the emer g ency , then his focus must nece ssarily shift

awa y from the nature of the violation to the likelihood of the

emer g ency

.

None of Cumberland’s arg uments for reje cting the Secr et ary ’s interpre tation is persua sive. First, Cumberland
arg ues that the Secre tary ’s interpre tation is inconsistent with the Commi ssion’s Mathies test. As no t ed above, the Commi ssion held in Mathies that to demonstrate a signific ant and substantial violation, the Secre tary must p ro v e four elements: (1) the14

underlying violation of a mandatory safety standard; (2) a discrete safety hazard that is, a measure of danger to safety contributed to by the violation; (3) a reasonable likelihood that the hazard in question will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. 6 FMSHRC at 3 4. Cumberland argues that by assuming the existence of an emergency, the Commission excused the Secretary from his burden of proving the second and third elements of the Mathies test. The hazard here is delayed escape from an emergency, but there can be no delayed escape, unless there is an emergency in the first place. Similarly, if there is no emergency, then there can be no resulting injury.

The problem with these arguments is that they assume that the Mathies test forbids the decisionmaker from assuming the existence of an emergency. It does not. Indeed, in the only Commission precedent to have considered whether assuming the existence of an emergency is consistent with the Mathies test,the Commission split on the question, resulting in a nonprecedential opinion. See Sec’y of Labor v. Manalapan Mining

, 18 FMSHRC 1375 (1996). Further, ALJs have routinely assumed the occurrence of the contemplated emergency in evaluating the significant and substantial nature of violations that only come into play in the event of an emergency. See, e.g.
, Twentymile Coal Co. , 29 FMSHRC 806, 810 11 (2007) (ALJ); American Coal Co. , 29 FMSHRC 252, 263 (2007) (ALJ), aff’d on other grounds , 29 FMSHRC 941 (2007); Anderson Sand & Gravel , 21 FMSHRC 186, 191 (1999) (ALJ). Therefore, contrary to Cumberland’s argument, the Secretary’s argument is not inconsistent with Mathies . In addressing this argument, we do not intend to imply that we are adopting the Mathies test, the validity of which is not challenged here. Instead, we simply reject Cumberland’s argument that the Secretary’s interpretation arbitrarily or capriciously departs from Commission precedent.15

Cumberland also argues that the Secretary’s interpretation ignores Commission precedent by excusing the Secretary from his duty to consider all of the facts surrounding a violation. Petitioner’s Br. 33 34 (citing National Gypsum , 3 FMSHRC 822, 825 (1981)). But we have held that decisionmakers should not consider facts unrelated to the violation when undertaking a significant and substantial evaluation. Sec’y of Labor v. FMSHRC , 111 F.3d at 917. In this case, the Secretary met the standard in our cases and the National Gypsum standard by considering all of the facts surrounding the violation

. Finally, Cumberland argues that the Secretary’s interpretation ignores Commission precedent rejecting an interpretation of the statute by which all mine safety and health standards would be significant and substantial except those that had no potential to cause injury. National Gypsum , 3 FMSHRC at 825. That general rule, which would apply to all violations, differs from the narrower rule at issue here, which applies only to violations of emergency safety measures. Because the stakes are much higher in emergency situations, a rule that would make many or most violations of emergency safety measures significant and substantial is distinguishable from a rule that would make all violations of all safety measures significant and substantial. Moreover, the Secretary proposes a rule that would require a reasonable likelihood of injury, whereas National Gypsum rejected a broader rule that would have allowed a significant and substantial finding anytime there was any potential of injury, not just where injury was reasonably likely. For these reasons, Cumberland’s argument fails.16

B. Substantial Evidence

Cumberland nex t arg ues that even if the Commi ssion applied the corr ect significant and substantial standard, its deter mination that the violations at issue here wer e signi fi cant and substantial is not supported by substantial evidenc e. Under the substanti al evidenc e standard of revie w, we may not reje ct

re as o n able finding s and conclusions, even if we would have weig hed the evidenc e differ ently

. Sec’ y of Labor v. Keystone Coal Mining Corp.
, 151 F.3d 1096, 1104 (D.C. Cir. 1998). We
must there fore examine Cumberland’s specific alleg ations and “dete rmine whether a theore tic al ‘re asonable fac tfinder’ could have reache d the conclusions actua lly rea ched by the Commi ssion and the AL J .” Id. (quoting United Steelworkers of A me rica v. NLRB
, 983 F.2d 240, 244 (D.C. Cir. 1993 ))

. Apply i n g this “hig hly defe rential standard,” we conclude that the Commi ssion’s decision rests on substantial evidenc e. Sec’ y of Labor v. FMSHRC , 111 F.3d a t 918.

Cumberland arg ues that in finding that these violations

wer e signific ant an d substantial, the Commi ssion ref used to consider evidenc e of preve ntative measure s t hat would have rende red both injuries from an emer g ency and the occur renc e of

an emerg ency in the first place less likely

. Cumberland contends that in doing so, the Commi ssion failed to consider all evidenc e including that which detra cts from its position, an d thus, its conclusion fa ils the substantial evidenc e test. See Universal Camera Corp. v. N L RB
, 340 U.S. 474, 488 (1951); American W

reck ing Corp. v. S

ec ’y of Labor

, 351 F.3d 1254, 1261 (D.C. C ir. 2003) (“The subst antial evidence rule requires that the C ommissi on rea sonably consider material evidence on both sides, as evidenc e that is substantial when viewed in isolation may become insubst a n ti a l w h e n contra dictory evidenc e is taken into acc ount.”).17

The first problem with Cumberland’s argument is that assuming the existence of an emergency in which a lifeline would be necessary also assumes an emergency in which all of the redundant safety measures Cumberland seeks to rely on have failed. The second problem is that consideration of redundant safety measures is inconsistent with the language of § 814(d)(1). As we have explained, the focus of the significant and substantial inquiry is the nature of the violation. “By focusing the decisionmaker’s attention on ‘such violation’ and its ‘nature,’ Congress has plainly excluded consideration of surrounding conditions that do not violate health and safety standards.” Sec’y of Labor v. FMSHRC , 111 F.3d at 917. Because redundant safety measures have nothing to do with the violation, they are irrelevant to the significant and substantial inquiry. Id. ; see also Buck Creek Coal, Inc. v. FMSHA , 52 F.3d 133, 136 (7th Cir. 1995) (rejecting an argument that redundant safety measures detracted from a significant and substantial finding).

Finally, Cumberland argues that the Commission’s significant and substantial findings are not supported by substantial evidence because “even assuming a hypothetical fire . . . , the evidence shows that it is not reasonably likely that such an event would result in a serious injury.” Petitioner’s Br. 46. As the Secretary points out, this objection misapprehends how the Mathies test applies. Under Mathies , the question is whether the hazard contributed to is reasonably likely to result in serious injury. 33 FMSHRC at 2366. Cumberland argues that substantial evidence does not support the conclusion that a hypothetical mine fire would be reasonably likely to result in serious injury, but the hazard here is not a hypothetical mine fire it is delayed escape from one. Putting that aside, a review of the record demonstrates that substantial evidence does in fact support the Commission’s conclusions.18

W hitehair’s testimony

, which the AL J acc epte d

, p ro vided a sufficie nt basis upon which a rea sonable fac tfi n d er

cou l d conclude that the lifeline violations at issue here would delay miners from esca

ping from an emer g ency and that such a delay would be rea son ab l y l i kely to cause serious injuries or death.

Wit h respe ct t o the December 6 violation, the evidence

we s et forth above in the discussion of the violations was

cre dited by the AL J and constitutes substantial evidenc e that the lifeline violation Whi tehair identified in the No. 1 belt entry of the Five Butt East L ong wall section contributed to the hazard of

a miner being delay ed or unable to esca pe during an emer g ency and that the h az ard was rea sonably likely to result in serious injury

.

Cumberland arg ues that in the event of a fire, min er s

wer e unlikely to be hurt beca use they could use the belt structure to g uide them out of the mine and could use the water line running along the belt as a direc tional indicator. That arg ument is unpersua sive. First, the rec ord demon s t ra t es that miners are trained to use lifelines in emer g encie s, and thus, even if they did think to use the belt structure or the water lines, they would still be delay ed as they first attempted to find and use the lifeline. Second, W hit eh ai r testified t hat because the water line and belt
structure lacke d the lifeline’s require d direc tional indicators, “it would be very easy [for miners] to become confuse d and may be
turn around and g o the wrong direc tion, beca use it’s not g oing
to tell them what direc ti on they are g oing.” Third, Cumberland’s arg ument ignor es a n o th er lifesaving advanta g e an adequa te lifeline would have over a cable or water line: lifelines

are desig ned to g uide mine rs t o alterna tive ref ug es, and
water lines and cable s are not. There fore

, the Commi s s i o n ’s finding s wer e rea sonable, and under the substant i al evidenc e19

standard of revie w, we must acc ept them. See Keystone Coal Mining Corp. , 151 F.3d a t 1104.

Ag ain, without reha shing the evidenc e set forth above, the same conclusion fo l l o ws with respe ct to eac h of the other three violatio ns. The Commi ssion’s decision rested on substantial ev idence

. We there fore reje ct Cumberland’s evidentiar y objection and must deny its petiti on.

Whil e Cumberland advanc es other arg uments, none

war rant fur ther discussion.

CONCLUSION

Be cause the Commi ssion applied the corr ect signific ant and substantial standard, and beca use substantial evidence supports eac h of the signific ant and s u b s t antial deter minations in question, the petition for revie w is denied.

So ordered.