United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 14, 2013 Decided June 7, 2013

No. 11-1464

CUMBERLAND COAL RESOURCES, LP,

PETITIONER

v.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

AND SECRETARY OF LABOR,

RESPONDENTS

UNITED MINE WORKERS OF AMERICA,

INTERVENOR

On Petition for Review of a Decision of the 

Federal Mine Safety and Health Review Commission

Ralph Henry Moore II argued the cause for petitioner. With

him on the briefs was Patrick W. Dennison.

Robin A. Rosenbluth, Senior Attorney, U.S. Department of

Labor, argued the cause for respondent. With him on the brief

were W. Christian Schumann, Counsel. John T. Sullivan,

Attorney, Mine Safety and Health Review Commission, entered

an appearance.

Judith Rivlin and Arthur Traynor were on the brief for

intervenor United Mine Workers of America in support of
2

respondent. 

Before: ROGERS and TATEL, Circuit Judges, and SENTELLE,

Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: This case comes before

us on a petition for review of the Federal Mine Safety and

Health Review Commission’s determination that Cumberland

Coal Resources, LP’s failure to maintain adequate emergency

lifelines in its mine’s escapeways was a significant and

substantial violation of the Federal Mine Safety and Health Act

of 1977 (“Mine Act”), 30 U.S.C. § 814(d)(1). Cumberland

argues that the Commission applied the wrong standard when it

reversed an administrative law judge’s (“ALJ’s”) determination

that the violations were not significant and substantial, and that

even if it applied the correct standard, its findings are not

supported by substantial evidence. Because we conclude that

the Commission applied the correct standard and that substantial

evidence supported its findings, we denyCumberland’s petition

for review.

I. BACKGROUND

A. Statutory and Regulatory Background

In 1977, Congress enacted the Federal Mine Safety and

Health 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 Health Administration (“MSHA”), acting on

behalf of the Secretary of Labor, conduct regular compliance

inspections of mines. 30 U.S.C. § 813(a). When an inspector

believes that the operator of a mine has violated the Act or
3

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, indicators
4

marking a branch line that is attached to the lifeline and leads to

a cache of stored self-contained self-rescuers providing

breathable air for emergencies, and indicators marking a branch

line attached to the lifeline and leading to a refuge alternative for

miners unable to escape. 30 C.F.R. § 75.30(d)(7)(v), (vii).

In December 2007, obedient to the statutory requirement

that the Secretary or his representative conduct frequent

inspections of mines to ensure compliance with mandatory

safety standards, Thomas J. Whitehair II, Special Investigator

for the Department of Labor’s Mine Safety and Health

Administration, conducted an inspection of the Cumberland

Mine nearWaynesburg, Pennsylvania. Whitehairinspected four

of the mine’s escapeways over a four-day period and issued a

citation for each, alleging violation of the lifeline requirement of

§ 75.380(d)(7)(iv). He further designated each violation as

significant and substantial, finding that the lack of adequate

lifelines would have delayed miners escaping from an

emergency, which would have been reasonably likely to result

in serious injury or death.

B. The Administrative Proceedings

On April 11, 2008, the Secretary filed a petition for

assessment of civil penalty for the violations. Cumberland

contested the citations before an administrative law judge, who

deleted the significant and substantial designations on January

21, 2011. See 33 FMSHRC 1482. Thereafter, the Commission

heard the petition for review and granted the petition. The

Commission reversed and remanded to the ALJ for the

imposition of penalties. On October 25, 2011, the ALJ issued

a decision on remand imposing penalties. Afterthe Commission

denied Cumberland’s petition for discretionary review,

Cumberland filed the present petition for review 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 would
6

fall on top of the water lines and cables that ran underneath and

perpendicular to it, requiring miners to release the lifeline and

search for it on the other side of the cables and waterlines. 

Whitehair further testified that this delay would have been

reasonably likely to result in injury. He believed that in the

event of an emergency during which miners would need a

lifeline, they would not be able to escape and would eventually

succumb to carbon monoxide poisoning. The ALJ credited that

testimony. 

b. The December 7, 2007, December 10, 2007,

and December 11, 2007, Violations

The evidence is similar with respect to the other three

violations. Whitehair testified that on December 7, 2007, the

lifeline in the No. 2 track entry for the Five Butt East Longwall

hung out of reach for many miners throughout most of the track

entry. He also observed track equipment, cables, and waterlines

under the lifeline. 

Whitehair testified that on December 10, 2007, he

observed that the lifeline in the No. 2 track entry of the Eight

Butt East section was hung high and out of reach for many

miners throughout most of the track entry. He also observed

track equipment, cables, and waterlines under the lifeline. 

On December 11, 2007, Whitehair found nearly the

entire lifeline in the No. 2 track entry of the Fifteen Butt East

section hung high and out of reach for many miners. He also

testified that it was suspended over track equipment. 

Whitehair testified that the track equipment under the

lifeline would delay miners attempting to escape an emergency. 

In thick smoke, the lead miner would be blinded and would run
7

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, and
9

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 reasonable
10

interpretations of the language 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 scheme of the Mine Act, the

Secretary’s litigating position before the Commission is as much

an exercise of delegated lawmaking powers as is the Secretary’s

promulgation of a . . . health and safety standard, and is

therefore deserving of deference.” Sec’y of Labor v. Excel

Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (internal quotation

marks omitted). Where, as here, the Secretary and the

Commission agree, there is no question but that we must accord

deference to their joint view. RAG Cumberland Res. LP v.

FMSHRC, 272 F.3d 590, 596 (D.C. Cir. 2001).

We analyze the Secretary’s and the Commission’s

interpretations of the Mine Act under the Chevron framework. 

Id. Under that familiar standard, “this court, of course, must

give effect to the unambiguously expressed intent of Congress.” 

Cannelton Indus., Inc., 867 F.2d at 1435 (internal quotation

marks omitted). If “the statute is silent or ambiguous with

respect to the specific issue,” the court defers to the Secretary’s

interpretation provided the interpretation 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 significant and

substantial violation is one that 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.” We first

consider the Secretary’s argument that this language

unambiguously expresses Congress’s intent to require

decisionmakers evaluating the significant and substantial nature

of violations of emergency safety standards such as

§ 75.380(d)(7)(iv) to assume the existence of the contemplated

emergency. 
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-emergency
13

standards because they are designed to apply meaningfully only

in times of emergency. If the Secretary interpreted, or if we

compelled the Secretary to interpret, § 814(d)(1) to command

decisionmakers not to assume the existence of the contemplated

emergency when evaluating the significant and substantial

nature of a violation of emergency safety standards, it would

appear unlikely that any violation of those standards would ever

be “significant and substantial.” That is, the violation of those

standards apparently would never, or at least rarely, contribute

to the existence of the emergency so that the scale would be

loaded against the finding. Given that the violation of those

standards could be expected to have serious, indeed tragic,

consequences, it is reasonable for the Secretary to interpret the

statute and his own regulations to avoid that odd result.

To expand on that thought, the interpretation advanced

by Cumberland would be inconsistent with our prior holding

that the significant and substantial inquiry should focus, as the

statutory text directs, on the nature of the violation. Sec’y of

Labor v. FMSHRC, 111 F.3d 913, 917 (D.C. Cir. 1997). Again,

a violation of the lifeline standard could only contribute to the

delayed evacuation from emergency hazard if there is an

emergency, but the likelihood of an emergencywill usually have

nothing to do with the violation of the emergency safety

standard. Thus, if the decisionmaker does not assume the

existence of the emergency, then his focus must necessarily shift

away from the nature of the violation to the likelihood of the

emergency. 

None of Cumberland’s arguments for rejecting the

Secretary’s interpretation is persuasive. First, Cumberland

argues that the Secretary’s interpretation is inconsistent with the

Commission’s Mathies test. As noted above, the Commission

held in Mathies that to demonstrate a significant and substantial

violation, the Secretary must prove four elements: (1) the
14

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 next argues that even if the Commission

applied the correct significant and substantial standard, its

determination that the violations at issue here were significant

and substantial is not supported by substantial evidence. Under

the substantial evidence standard of review, we may not reject

reasonable findings and conclusions, even if we would have

weighed the evidence differently. Sec’y of Labor v. Keystone

Coal Mining Corp., 151 F.3d 1096, 1104 (D.C. Cir. 1998). We

must therefore examine Cumberland’s specific allegations and

“determine whether a theoretical ‘reasonable factfinder’ could

have reached the conclusions actually reached by the

Commission and the ALJ.” Id. (quoting United Steelworkers of

America v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993)). 

Applying this “highly deferential standard,” we conclude that

the Commission’s decision rests on substantial evidence. Sec’y

of Labor v. FMSHRC, 111 F.3d at 918.

Cumberland argues that in finding that these violations

were significant and substantial, the Commission refused to

consider evidence of preventative measures that would have

rendered both injuries from an emergency and the occurrence of

an emergency in the first place less likely. Cumberland

contends that in doing so, the Commission failed to consider all

evidence including that which detracts from its position, and

thus, its conclusion fails the substantial evidence test. See

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951);

American Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254,

1261 (D.C. Cir. 2003) (“The substantial evidence rule requires

that the Commission reasonably consider material evidence on

both sides, as evidence that is substantial when viewed in

isolation maybecome insubstantial when contradictoryevidence

is taken into account.”).

 
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

Whitehair’s testimony, which the ALJ accepted,

provided a sufficient basis upon which a reasonable factfinder

could conclude that the lifeline violations at issue here would

delay miners from escaping from an emergency and that such a

delay would be reasonably likely to cause serious injuries or

death.

With respect to the December 6 violation, the evidence

we set forth above in the discussion of the violations was

credited by the ALJ and constitutes substantial evidence that the

lifeline violation Whitehair identified in the No. 1 belt entry of

the Five Butt East Longwall section contributed to the hazard of

a miner being delayed or unable to escape during an emergency

and that the hazard was reasonably likely to result in serious

injury.

Cumberland argues that in the event of a fire, miners

were unlikely to be hurt because they could use the belt structure

to guide them out of the mine and could use the waterline

running along the belt as a directional indicator. That argument

is unpersuasive. First, the record demonstrates that miners are

trained to use lifelines in emergencies, and thus, even if they did

think to use the belt structure or the waterlines, they would still

be delayed as they first attempted to find and use the lifeline. 

Second, Whitehair testified that because the waterline and belt

structure lacked the lifeline’s required directional indicators, “it

would be very easy [for miners] to become confused and maybe

turn around and go the wrong direction, because it’s not going

to tell them what direction they are going.” Third,

Cumberland’s argument ignores another lifesaving advantage an

adequate lifeline would have over a cable or waterline: lifelines

are designed to guide miners to alternative refuges, and

waterlines and cables are not. Therefore, the Commission’s

findings were reasonable, and under the substantial evidence
19

standard of review, we must accept them. See Keystone Coal

Mining Corp., 151 F.3d at 1104. 

Again, without rehashing the evidence set forth above,

the same conclusion follows with respect to each of the other

three violations. The Commission’s decision rested on

substantial evidence. We therefore reject Cumberland’s

evidentiary objection and must deny its petition. 

While Cumberland advances other arguments, none

warrant further discussion.

CONCLUSION

Because the Commission applied the correct significant

and substantial standard, and because substantial evidence

supports each of the significant and substantial determinations

in question, the petition for review is denied.

So ordered.