                                                                                    FILED
                                                                        United States Court of Appeals
                                        PUBLISH                                 Tenth Circuit

                        UNITED STATES COURT OF APPEALS                          July 10, 2018

                              FOR THE TENTH CIRCUIT                          Elisabeth A. Shumaker
                          _________________________________                      Clerk of Court

CANYON FUEL COMPANY, LLC,

      Petitioner,

v.                                                             No. 17-9541

SECRETARY OF LABOR; FEDERAL
MINE SAFETY AND HEALTH REVIEW
COMMISSION,

      Respondents.
                          _________________________________

                         Petition for Review of an Order from the
                    Federal Mine Safety and Health Review Commission
                                (MSHR No. West 2015-635)
                          _________________________________

Ralph Henry Moore, II (Patrick W. Dennison with him on the briefs), Jackson Kelly
PLLC, Pittsburgh, Pennsylvania, for Petitioner.

Emily C. Toler, Attorney (Nicholas C. Geale, Acting Solicitor of Labor; April E. Nelson,
Associate Solicitor; and Ali A. Beydoun, Counsel, Appellate Litigation, with her on the
brief), United States Department of Labor, Office of the Solicitor, Arlington, Virginia, for
Respondents.
                         _________________________________

Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

McHUGH, Circuit Judge.
                    _________________________________
      Canyon Fuel operates the Sufco Mine, a coal mine located in Sevier County,

Utah. Under federal law, the mine must have two escapeways in the event of an

emergency: a primary escapeway and an alternate escapeway. An inspector for the

Mine Safety and Health Administration (“MSHA”) cited Canyon Fuel for a violation

of this mine safety requirement. Canyon Fuel unsuccessfully contested the citation

before the federal agency and now petitions for judicial review of that decision. We

affirm the Secretary of Labor’s interpretation of the regulation as requiring

consideration of both above- and below-ground factors, but we vacate the citation

because it is not supported by substantial evidence.

                                 I. BACKGROUND

                                 A. Factual History

      Canyon Fuel’s Sufco Mine employs between eighty and ninety miners per

shift. Canyon Fuel Co. v. Sec’y of Labor, Mine Safety & Health Admin., 38 FMSHRC

2205, 2206 (2016) (“Canyon Fuel I”). Approximately twenty of those miners are

deployed to the two working sections of the mine relevant to this appeal. Id. The

primary escapeway from the mine exits through the West Lease Portal, which is the

main entrance to the mine and is accessible by road. Id. at 2207. Canyon Fuel

installed the 4 East Fan Portal in 1991 and designated it as the primary escapeway in

1992. Id. at 2210. Later, Canyon Fuel designated the 4 East Fan Portal as the

alternate escapeway. Id. at 2210. The 4 East Fan Portal, unlike the West Lease Portal,

opens onto a canyon ledge that is not accessible by road. Id. at 2207. For over twenty



                                           2
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

                                           3
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

                                            4
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

                                            5
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.

                                            6
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
                                           7
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.
                                           8
       Working Sections




                                               Exit




                          Primary Escapeway
                          4 East Fan Portal/West Lease Portal Shared
                          Point of Divergence
                          4 East Fan Portal Escapeway
                          West Lease Portal Escapeway


Exit


                   9
                               B. Procedural History

      In March 2015, when Canyon Fuel had not changed its alternate escapeway

from the 4 East Fan Portal route to the West Lease Portal route, MSHA issued

Citation No. 8483766 for a violation of 30 C.F.R. § 75.380(d)(5). That regulation

requires that escapeways be “[l]ocated to follow the most direct, safe and practical

route to the nearest mine opening suitable for the safe evacuation of miners.” 30

C.F.R. § 75.380(d)(5). The citation explained that Canyon Fuel was in violation of

the regulation because the alternate escapeway was not accessible via a roadway for

land-traveling vehicles. Canyon Fuel I, 38 FMSHRC at 2206. MSHA determined the

violation was not of a significant and substantial nature, concluded Canyon Fuel was

moderately negligent, and proposed a penalty of $425. Id. Later, MSHA amended the

citation to change the deficient condition to not providing “a roadway for land-

travelling vehicles to access [the] area from the surface or any dependable alternative

evacuation methods,” but it left in place the determination of negligence and the

proposed penalty. Joint App. at 111.

      Two months later, MSHA issued Canyon Fuel two additional citations.

Canyon Fuel I, 38 FMSHRC at 2218, 2222. Canyon Fuel challenges one of these,

Citation No. 8480766, in a separate proceeding.5 That citation charges a violation of



      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_
                                          10
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-MSA-
8 (Assistant Sec’y of Labor Nov. 21, 2017).
                                          11
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
                                           12
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.



                                            13
                          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

                                            14
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


                                              15
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


                                              16
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

                                              17
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.

                                              18
      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).
                                           19
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




                                             20
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.
                                            21
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



                                           22
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.

                                             23
      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

                                           24
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

                                           25
“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

                                            26
(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,

                                             27
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

                                             28
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.
                                             29
                        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

                                            30
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

                                           31
      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 well-
      built 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
                                          32
       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.
                                             33
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

                                           34
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

                                           35
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



                                            36
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.
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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

                                            38
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 change-

outs, 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

                                            39
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.
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