Secretary of Labor v. Canyon Fuel Company, LLC

Plain-English summary

Canyon Fuel's alternate escapeway ended at a mountain portal without road access, where miners would need to hike for hours or rely on helicopter rescue that was unavailable at night, in poor weather, or in winds above 10 mph. The Commission unanimously affirmed a violation of 30 C.F.R. § 75.1713-1(b), holding that 24-hour emergency transportation was not provided when injured miners at the portal could not reliably be reached and that a reasonably prudent operator had fair notice of the requirement. Commissioners Mary Lu Jordan and Robert F. Cohen Jr. would also have affirmed that the portal was not a mine opening suitable for safe evacuation under 30 C.F.R. § 75.380(d)(5). Acting Chairman William I. Althen and Commissioner Michael G. Young would have vacated that citation because they found the Secretary's interpretation and chosen alternative insufficiently reasoned. The 2-2 split left the judge's affirmance of the escapeway citation standing as if affirmed.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1713-1(b) and 75.380(d)(5)
• Outcome: The ambulance-service citation was unanimously affirmed, and the divided vote left the escapeway citation affirmed.
• Key point: Emergency transportation is not available around the clock if injured miners at an escapeway portal cannot reliably be reached.
• Escapeway split: Jordan and Cohen considered surface evacuation conditions part of the standard; Althen and Young found the Secretary's interpretation arbitrary and inadequately supported.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

SECRETARY
OF LABOR,                            :        

MINE SAFETY AND HEALTH                  :                                

ADMINISTRATION (MSHA)                     :         Docket Nos. WEST
2015-635

:                        
 WEST 2015-676-R

v.                                              
:                          WEST 2015-677-R

:

CANYON FUEL COMPANY, LLC              :

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen,
Commissioners

DECISION

BY THE COMMISSION:

This proceeding arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). The case
involves two citations issued to Canyon Fuel Company by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”). [1] Both citations
address the surface conditions at the mine opening where the alternate
escapeway for Canyon Fuel’s Sufco Mine terminates. Citation No. 8483766 alleges
that those surface conditions make the mine opening unsuitable for safe
evacuation, in violation of 30 C.F.R. § 75.380(d)(5). [2] Citation
No. 8480766 alleges that emergency services could not reliably reach injured
persons at the mine opening, and therefore Canyon Fuel had failed to provide
24-hour emergency transportation, as required by 30 C.F.R. § 75.1713-1(b). [3]

After a hearing on the merits, an Administrative Law
Judge issued a decision affirming both citations. 38 FMSHRC 2205 (Aug. 2016)
(ALJ). Canyon Fuel filed a petition for discretionary review, which the
Commission granted.

The Commission unanimously affirms the Judge’s finding
that Canyon Fuel violated section 75.1713-1(b), which requires 24-hour
availability of ambulance service. With regard to the citation issued for a
violation of section 75.380(d)(5), two Commission members vote to affirm the
Judge’s decision, and two Commission members vote to reverse. As a result of
the split votes, the Judge’s decision as to that citation will stand as if
affirmed. Pennsylvania Elec. Co. , 12 FMSHRC 1562, 1563-65 (Aug. 1990), aff’d
on other grounds , 969 F.2d 1501 (3d Cir. 1992).

I.

Factual and Procedural Background

A.    
Factual Background

Canyon Fuel’s Sufco Mine is an underground coal
mine in Utah, with approximately 20 miners per shift in the working sections. The
mine’s primary escapeway exits at the West Lease Portal, which has road access,
and where Canyon Fuel maintains a 24-hour ambulance.

The alternate escapeway terminates at the 4
East Fan Portal, which exits onto a flat area on a mountain slope approximately
150 feet above the canyon floor. This area is approximately 200 feet long and
50 feet wide. Three buildings housing the fan motor, a diesel generator, and
spare parts take up more than half of the surface area. There is no road
access. To leave the area on foot, one could hike down to a creek bed at the
bottom of a canyon, then follow an unpaved trail for a few miles to a gravel
road. This path took Canyon Fuel’s operations manager two hours to walk, in
good weather, while uninjured. Alternatively, one could hike uphill 400-500 yards
up to a plateau, then follow a ridge for a short way to a Forest Service road
which was not plowed in winter months. This route was not tested.

During an inspection in June 2014, MSHA Coal
District 9 Manager Russell Riley viewed the mine’s escapeway maps and noticed
that the 4 East Fan Portal did not have road access. He asked mine personnel
how miners would be evacuated away from the portal in the event of an emergency.
They responded that they did not know, and had never been asked. During the
closeout conference, Riley expressed his concerns to mine management. He was
told that the alternate escapeway followed the shortest path out of the mine,
and that MSHA had never previously taken issue with the route since it was
developed in 1991. Riley described MSHA’s failure to raise the issue for 21 years
as an oversight. He left the mine without issuing a citation, because he was
under the impression that the mine planned to take steps to relocate the alternate
escapeway.

In March 2015, Riley learned that the mine did
not intend to relocate the escapeway, and issued Citation No. 8483766. The
citation alleges that the 4 East Fan Portal is not provided with surface road
access or any dependable alternative evacuation methods in the event of a mine
emergency, and therefore the mine’s alternate escapeway does not terminate at a
mine opening suitable for safe evacuation as required by section 75.380(d)(5). Riley
explained that miners at the portal would be exposed to potential hazards such
as exposure to gas and smoke, and would be cut off from medical assistance.

MSHA proposed a new alternate escapeway which
would run parallel to the primary escapeway and terminate at the West Lease
Portal. This route would require rehabilitation, including widening entries,
adding support, and installing signs, lifelines, reflectors, and caches of
Self-Contained Self-Rescuers (“SCSRs”). Riley conceded that the existing route is
more direct than the proposed route. The 4 East route is 2.34 miles long with 5
overcast crossings, [4]
and would require 2 SCSR change-outs. The West Lease route is 5.88 miles long
with 12 overcast crossings, and would require 5 SCSR change-outs. However,
Riley believed the proposed route to be the safer and more practical option. He
noted that two-thirds of the distance could be travelled by vehicle, that the
extra overcasts had well-built stairs and would only take a few seconds to
traverse (assuming that miners were not injured), that miners would be unlikely
to require SCSRs since the route was ventilated with intake air, and that it
would exit at a portal with road access.

In May 2015, Canyon Fuel contacted Intermountain Life
Flight to arrange for helicopter rescue services at the 4 East Fan Portal. Although
helicopters would not be able to land on the area outside the portal, miners
could be evacuated two at a time using a hoist. However, helicopters would not
be able to perform rescue services in winds above 10 mph, in poor weather or
poor visibility, or at night. Because the mine operates in winter and at night,
Riley determined that reliable 24-hour emergency transportation was not
available at the 4 East Fan Portal as required by section 75.1713-1(b), and
issued Citation No. 8480766.

Canyon Fuel contested the first citation, asserting
that the alternate escapeway met the requirements of section 75.380(d)(5) by
following the most direct, safe and practical path to the surface. Contrary
to the Secretary’s interpretation, Canyon Fuel argues that the purpose of the
section is to permit the fastest, safest route to the surface. Alternatively,
Canyon Fuel argues the conditions on the bench were safe. Canyon Fuel also contested
the second citation, asserting that the mine complied with section 75.1713-1(b)
by providing 24-hour ambulance services at the West Lease portal, or alternately,
that the second citation should be vacated due to lack of notice.

B.     
The Judge’s Decision

With respect to the citation issued for the failure to
provide a safe escapeway, the Judge deferred to the Secretary’s interpretation
of the standard, finding it reasonable to consider surface conditions outside
the mine when determining whether a mine opening is suitable for safe
evacuation. 38 FMSHRC at 2214-16. The Judge rejected Canyon Fuel’s argument
that the Secretary’s interpretation was inconsistent with MSHA’s prior practice,
finding instead that the Secretary simply had not previously considered the
issue at this mine. Id. at 2217. Having accepted the Secretary’s
interpretation, the Judge found that the escapeway violated section
75.380(d)(5). He found that the 4 East Fan Portal was not suitable for safe
evacuation because miners would be stranded and exposed to hazards once they
exited the mine, particularly if dealing with harsh weather or injury. He
concluded that the Secretary’s proposed alternative, although longer and more
difficult to traverse, is the most direct, safe and practical route to a mine
opening suitable for safe evacuation, noting that it terminates at a portal
with road access, the overcasts had well-built stairs, and it is similar in length
to the primary escapeway. Id. at 2217-18.

The Judge also affirmed the citation issued for the
failure to provide 24 hour ambulance service, holding that “a violation is
established if, as in this case, an operator has arranged for emergency
transportation, but that transportation is not available 24 hours a day at the
alternate escapeway.” Id. at 2220. He explained that the standard
requires emergency transportation for “ any person injured at the mine,”
but such transportation was not available for injured miners at the 4 East Fan
Portal, because they could not be reliably reached by ambulance or helicopter. Id.
The Judge rejected Canyon Fuel’s argument regarding lack of notice, but found
that it did indicate the operator’s belief that it was in compliance with the
standard. Accordingly, he reduced the degree of negligence from moderate to low.
Id. at 2220 n.11, 2222.

II.

Disposition

For the escapeway citation, Canyon Fuel argues on
appeal that the Judge erred in deferring to the Secretary’s interpretation and
in concluding that the existing escapeway violated the standard. It claims that
section 75.380(d)(5) requires escapeways to follow the most direct, safe and
practical evacuation route to permit safe exit from the mine, and that the
existing escapeway does so. With regard to the 24-hour ambulance service citation,
Canyon Fuel argues on appeal that the Judge erred in rejecting its claim that
the standard did not provide adequate notice of what it required.

A.     24-Hour
Ambulance Citation No. 8480766 (Docket No. WEST 2015-676-R)

Canyon Fuel challenged the Judge’s finding of a violation
of section 75.1713-1(b). [5]  
The plain language of the standard requires 24-hour emergency transportation to
be provided “for any person injured at the mine.” 30 C.F.R. § 75.1713-1(b). Here,
injured miners exiting at the 4 East Fan Portal may not be able to hike to the
nearest road, could not be reliably reached by helicopter, and could not be
reached at all by ambulance. Injured miners at the 4 East Fan Portal would be
stranded without reliable immediate access to medical transportation. Common
sense dictates that compliance requires accessibility; transportation cannot be
provided on a 24-hour basis if the injured persons cannot be reached. The
requirement for ambulance service was not available to “any person injured at
the mine.” Hence, we conclude that Canyon Fuel was not able to provide the
requisite 24-hour ambulance service to the portal from its existing alternate
escapeway and was in violation of the standard.

Alternatively, Canyon Fuel argued that it could not be
found to have violated the standard because it had never received fair notice
that the standard required the 24-hour availability of ambulance service to the
alternate escapeway portal. For the reasons set forth below, we conclude that
Canyon Fuel had adequate notice of the requirements of the cited standard.

To comport with due process, laws must “give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited, so
that [the person] may act accordingly.” Grayned v. City of Rockford , 408
U.S. 104, 108 (1972); Lanham Coal Co. , 13 FMSHRC 1341, 1343 (Sept.
1991). In determining whether a safety standard provides adequate notice, the
Commission generally applies an objective standard, asking “whether a
reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would have recognized the specific prohibition or
requirement of the standard.” Ideal Cement Co. , 12 FMSHRC 2409, 2416
(Nov. 1990). Adequate notice may also be established when the language of the
standard provides unambiguous notice of its coverage and requirements, or when
an agency gives actual notice of its interpretation prior to enforcement. See
DQ Fire & Explosion Consultants, Inc. , 36 FMSHRC 3083, 3087 (Dec. 2014)
(citing Bluestone Coal Co. , 19 FMSHRC 1025, 1029 (June 1997)); Consolidation
Coal Co. , 18 FMSHRC 1903, 1907 (Nov. 1996); Gen. Elec. Co. v. EPA ,
53 F.3d 1324, 1329 (D.C. Cir. 1995).

As set forth above, the plain language of the standard
requires 24-hour emergency transportation for persons injured at the mine. In
determining whether emergency transportation arrangements comply with the
standard, a reasonably prudent operator would consider accessibility. Had Canyon
Fuel considered accessibility as a reasonably prudent mine operator, it should
reasonably have realized that its existing arrangements at the termination point
for the alternate escapeway — an area where one would reasonably foresee
injured miners — did not comport with the requirements of the standard. Helicopter
services that cannot operate at night or in bad weather, and that could not
safely land on the area outside the portal, did not provide 24-hour access; and
ground ambulances simply could not reach the site due to the absence of road
access. A reasonably prudent operator would have understood that such a
situation does not comply with section 75.1713-1(b).

Indeed, evidence demonstrates that Canyon Fuel was aware of
the insufficiency of its plan for extracting injured miners. It began making
arrangements for helicopter rescue services, and was informed by Intermountain
Life Flight that there may be a fair number of no-fly days, prior to the
issuance of the citation. Gov. Ex. 5. These facts indicate awareness that the existing
ambulance arrangements were insufficient, and that even helicopter services
would not be able to guarantee 24-hour availability. Canyon Fuel should have
been, and may indeed have been, aware that existing emergency transportation
arrangements did not comply with the standard, given the conditions at the 4
East Fan Portal. [6]

A reasonably prudent operator familiar with the industry
and the standard’s protective purpose should have recognized that the existing
arrangements at the mine did not meet the requirements of section 75.1713-1(b).
The Judge properly rejected Canyon Fuel’s claim of inadequate notice. We affirm
the Judge’s decision with respect to Citation No. 8480766.

B.     
Separate Opinions of the Commissioners Regarding Safe Escapeway

Citation No. 8483766 (Docket No. WEST 2015-635)

Commissioners Jordan and Cohen, in favor of affirming the Judge:

Canyon Fuel raises both legal issues of interpretation and
factual issues as to the sufficiency of the cited escapeway. The Commission
applies de novo review for legal issues, and the substantial evidence test for
factual issues. See, e.g. , Black Diamond Constr., Inc. , 21 FMSHRC
1188, 1194 (Nov. 1999). For the reasons below, we conclude that surface
conditions are relevant to and may properly be considered when determining
compliance with section 75.380(d)(5), and that substantial evidence supports
the Judge’s conclusion that the cited escapeway was not the “most direct, safe
and practical route to the nearest mine opening suitable for the safe evacuation
of miners” as required by the standard.

1. Interpretation of Section 75.380(d)(5)

Section 75.380(d)(5) requires that escapeways be “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). Citation
No. 8483766 alleges that the alternate escapeway is not routed to a mine
opening suitable for safe evacuation because there is no reliable means of
evacuation from the surface at the portal where the escapeway terminates. The
Secretary claims that “safe evacuation” as required by the standard involves
conditions at the surface as well as underground, while Canyon Fuel
argues that the standard only addresses underground conditions and the route to
the surface. The Judge found that the standard was ambiguous, and that the
Secretary’s interpretation was reasonable. [7]
38 FMSHRC at 2214-16. We would affirm in result, finding that the plain meaning
of the standard allows for consideration of surface conditions in determining whether
a mine opening is suitable for safe evacuation.

The plain text of the regulation requires that escapeways
be routed to the “nearest mine opening suitable for the safe evacuation of
miners.” 30 C.F.R. § 75.380(d)(5). Basic rules of grammar and interpretation
dictate that “suitable for safe evacuation” modifies “mine opening,” rather
than “most direct, safe and practical route.” Cf. Barnhart v. Thomas ,
540 U.S. 20, 26 (2003) (under the “rule of the last antecedent,” a limiting
clause or phrase should be read to modify only the noun or phrase that
immediately precedes it). As both parties agree, the ordinary meaning of “evacuation”
is removal from an endangered area to a place of safety. In other words,
evacuation is a process that ends once the miners being evacuated are no longer
exposed to hazards. As a general matter, one might expect the majority of
portals to be free of surface hazards, such that evacuation is complete once
miners reach the surface, and compliance effectively turns on underground
conditions. However, in order to truly provide for safe evacuation, the
standard must be read to consider surface hazards, if and where they exist. Our
colleagues agree that the standard requires consideration of surface
conditions, rejecting Canyon Fuel’s argument that only underground conditions
are relevant. See slip op. at 13.

Indeed, the Secretary offers a convincing hypothetical: If section
75.380(d)(5) were limited to underground conditions, then theoretically, an
escapeway would be compliant if it followed a safe, direct and practical route
to a mine opening which opened onto thin air. Clearly, such a mine opening is
not suitable for safe evacuation. Indeed, at oral argument Canyon Fuel’s
counsel conceded that such an escapeway would not provide for “safe
evacuation.” Oral Arg. Tr. 8. While this is obviously extreme, the point
stands: To serve the purpose of the standard (safe evacuation), miners must be
able to safely exit away from the escapeway’s termination point, as well as
safely reach it. Cf. American Coal Co. , 29 FMSHRC 941, 948 (Dec.
2007) (interpreting an escapeway standard to find that an escapeway had not
been “provided” where it was not readily accessible). Section 75.380(d)(5) must
logically be read to allow for the consideration of surface conditions. [8]

Our colleagues disparage the Secretary’s hypothetical of an
escapeway leading to a mine opening into thin air, slip op. at 15, overlooking
the fact that Canyon Fuel’s position was — and continues to be — that the
standard only addresses underground conditions and the route to the
escapeway. In this context, the hypothetical makes complete sense. Indeed,
Commissioner Young addressed this hypothetical to Canyon Fuel’s counsel at oral
argument. Oral Arg. Tr. 7-8.

Canyon Fuel dismisses the risk of surface hazards, arguing
that the expected hazards during an emergency in an underground coal mine are
underground, and therefore travelling to the surface removes miners from
the endangered area. In support, Canyon Fuel notes that the preamble to the
final rule for section 75.380(d)(5) focuses on underground conditions. Canyon
Fuel correctly characterizes the focus of the preamble. See 61 Fed. Reg.
9764, 9812-13 (Mar. 11, 1996). This is a logical focus for the preamble. As
Canyon Fuel states, it is reasonable to assume that most hazards in an
underground coal mine emergency will indeed be underground, and most mine
openings will be safe at the surface. As the Judge stated, “the drafters of the
safety standard quite naturally assumed that once miners reach the surface,
they would be safe.” 38 FMSHRC at 2216.

However, the preamble’s failure to address surface
conditions does not mean that such conditions should never be considered. Rather,
it simply indicates that such a scenario was so unlikely that the drafters of
the preamble did not address it. As the Judge said, “[w]hen MSHA promulgated
and revised the safety standard, it is unlikely that the drafters of the
standard thought that a situation would arise in which miners escaping from a
mine might be required, after arriving at the mine opening, to hike four to
five miles along a wildlife/cattle trail over rough terrain or hike up to the
top of a canyon. Likewise, it is unlikely that MSHA contemplated that injured miners
would require rescue via baskets suspended from a helicopter.” Id. at
2216.

Preambles need not expressly detail every circumstance in
which a standard may apply. A regulation may be applied to a scenario which was
not expressly anticipated by its drafters, as long as it serves the
regulation’s intended purpose. Oregon Paralyzed Veterans of Am. v. Regal
Cinemas, Inc. , 339 F.3d 1126, 1132–33 (9th Cir. 2003); cf. Simola, empl.
by United Taconite LLC , 34 FMSHRC 539, 549-50 (Mar. 2012), citing People
of Puerto Rico v. Shell Co. , 302 U.S. 253 (1937) (Congress would have
intended section 110(c) of the Mine Act to apply to LLCs, if they had existed
when the statute was drafted); Pennsylvania Dep’t of Corr. v. Yeskey ,
524 U.S. 206, 212 (1998) (a statute can apply in situations not expressly
anticipated by Congress).

Section 75.380(d)(5) requires escapeways to provide for
safe evacuation, i.e., the removal of miners from an endangered area to a place
of safety. That miners will be safe once they reach the surface in most situations
does not mean that potential surface hazards at the mine opening can be ignored
if and when they are relevant. The plain language and purpose of the standard
provide for the consideration of surface conditions when determining if an
escapeway follows “the most direct, safe and practical route to the nearest
mine opening suitable for the safe evacuation of miners .” [9] 30 C.F.R. §
75.380(d)(5) (emphasis added).

2. Substantial Evidence

In establishing a violation of section 75.380(d)(5),
the Secretary’s burden is “to prove that, as compared to the [operator’s]
designated route, there is at least one other escapeway route that [he] has
determined more closely complies with the standard’s requirement.” Southern
Ohio Coal Co. , 14 FMSHRC 1781, 1785 (Nov. 1992). In other words, the
Secretary must show that the operator’s route is not the most direct,
safe and practical route to a mine opening suitable for the safe evacuation of
miners. The Judge held that the Secretary’s proposed alternative route is the
safer, more direct and practical route to a mine opening suitable for safe
evacuation. We find that substantial evidence supports the Judge’s conclusion.

An escapeway must lead to a “mine opening suitable for
the safe evacuation of miners.”  30 C.F.R. § 75.380(d)(5). The record supports
the Judge’s conclusion that the cited escapeway is deficient in this respect. The
mine is in a mountainous region in Utah, and operates at night and in the
winter. See Tr. 64-67, 266, 280; Gov. Ex. 11. As previously mentioned, the
escapeway terminates at the 4 East Fan Portal, which exits onto a flat area
approximately 50 feet wide, 200 feet long, and 150 feet above the canyon floor.
Tr. 30-31, 150, 163. There is no road access.

Tr. 23. To leave on foot, miners have to either walk down the slope to a creek
bed and follow a cattle trail for 4-5 miles, or hike up the canyon a few
hundred yards to a plateau, then walk to a Forest Service Road which is
unplowed in the winter. Canyon Fuel’s operations manager, John Byars, testified
that the lower route took two hours to travel on foot, while he was uninjured
and walking in good weather. The upper route has never been tested. Tr. 232-37,
276, 300-303, 317, 340.

Alternatively, miners might stay on the ledge and
await helicopter rescue. However, the ledge at the 4 East Fan Portal does not
have room for a helicopter to land. Tr. 155-56; Gov. Ex. 10. To perform a
rescue, the helicopter crew would have to hover overhead and drop a basket to
hoist miners up to the helicopter. Tr. 62, 65-66, 265-66; Gov. Exs. 5, 6. Only
two miners at a time could be transported in the helicopter, and so as many as
10 helicopter trips might be necessary to bring all the miners off the ledge. Tr.

156. The hoist operation could not be performed at night, in winds over 10
     miles per hour, in rain, or in most winter weather. Tr. 62, 64-68, 265-67; Gov.
     Exs. 5, 6. Moreover, the helicopter service requires that the lowest level of
     cloud cover be at least 1000 feet above the ground, and that visibility be at
     least three miles.   Tr. 67; Gov. Ex. 6. Additionally, District Manager Riley
     and Assistant District Manager James Preece expressed concern that the fan at
     the portal discharges several hundred cubic feet of air from the mine up toward
     any helicopter which is hovering above, trying to drop a basket to hoist
     miners. This could affect the helicopter’s control, and the discharge could
     contain mine gases or smoke. Tr. 65-66, 155.

Essentially, miners exiting at the portal in the event
of a mine emergency would have to choose between hiking down a slope and then
walking some distance along a cattle trail, hiking up a slope to a road that
may not be passable, or waiting on the ledge until conditions are fair for
helicopter rescue, all potentially in the dark, in inclement weather. They
might need to do so while injured, or while assisting other injured miners. Depending
on the nature of the injury, a miner may not be able to be hoisted up to the
helicopter in a basket.

Safe evacuation means removing miners to a place of
safety. Miners who may emerge from the escapeway to find themselves hiking
through or stranded in harsh weather, while injured and without access to
medical assistance, have not yet reached that place of safety. [10] Based on
the record, the Judge reasonably concluded that the 4 East Fan Portal is not a
mine opening suitable for safe evacuation.

Escapeways must also follow “the most direct, safe and
practical route” to that mine opening. 30 C.F.R. § 75.380(d)(5). Canyon Fuel
argues that MSHA’s proposed route does not meet those criteria, as it forces
miners to stay underground in dangerous conditions for a longer period of time.
The underground portion of the proposed route is indeed longer than the
existing alternate escapeway, with more overcast crossings. However, substantial
evidence supports the Judge’s conclusion that, when all relevant factors are
considered , the Secretary’s proposed route better complies with the
standard. 38 FMSHRC at 2217-18. The proposed route may be longer than the
present alternate escapeway, but it is no longer than the primary escapeway
which runs parallel to it. Tr. 133. Unlike the existing alternate escapeway, it
is drivable for the majority of its length. Tr. 133-34. While there are more
overcasts, Supervisory Inspector Sydel Yeager testified that they would not be
difficult to negotiate, as they have well-built stairs. Tr. 182. Perhaps most
importantly, MSHA’s proposed route leads miners to a portal where there is an
ambulance continually stationed. Tr. 43.

Furthermore, as discussed above, compliance with
section 75.380(d)(5) is not limited to underground considerations. Here, the
underground portion of the existing route is more direct (2.34 miles with 5
overcasts), but miners following the most likely route away from the ledge
would still have to descend a canyon slope and walk an additional 4-5 miles
before evacuation is complete. The underground portion of the proposed route is
less direct (5.88 miles with 12 overcasts), but evacuation is complete once
miners reach the surface. When considering both underground and surface
conditions, substantial evidence supports the Judge’s conclusion that the
proposed route better complies with the standard. [11]

For the foregoing reasons, we would affirm the Judge’s
decision with respect to Citation No. 8483766. Substantial evidence supports a
finding that the alternate escapeway here violated the plain meaning of section
75.380(d)(5).

Acting Chairman Althen and Commissioner Young, in favor of reversing
the Judge:

We join our colleagues in affirming the violation of
30 C.F.R. § 75.1713-1(b), stated in Citation No. 8480766, for a failure to
provide 24-hour emergency transportation at the 4 East Fan Portal, the site of
the alternate escapeway at Canyon Fuel’s Sufco Mine. We write separately
because we would reverse the Judge’s finding of a violation of 30 C.F.R. § 75.380(d)(5).
We disagree with our colleagues’ reading of the language of the regulation. Moreover,
we do not agree that the Secretary has met his burden of proving that the
operator’s designated route was not “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).

Section 75.380(d)(5) states that “[e]ach escapeway shall be
. . . [l]ocated to follow the most direct, safe
and practical route to the nearest mine opening suitable for the safe
evacuation of miners.” The focus of this provision is the route itself and more
specifically addresses the efficiency of that route for purposes of providing
miners, in the event of an emergency, quick and safe egress out of the mine.

Subsection (d)(5)
explicitly requires the mine operator to provide the most direct, safe and
practical route to the nearest mine opening. These terms clearly identify the
characteristics the Secretary must use to evaluate whether the operator’s
designated escapeway is preferable to an alternative route. Hence, the
Secretary must evaluate and compare alternatives and determine which is the
most (1) direct, (2) safe and (3) practical route to (4) the nearest mine
opening (5) suitable for the safe evacuation of miners.

The plain, ordinary
meaning of the term “direct, safe and practical route” is not in dispute. This
case turns on the meaning of “suitable for the safe evacuation of miners.” The
circumstances here present an evident tension between the two clauses. In
seeking to resolve that tension, the Secretary has not fully considered the
implications his solution will have on miner safety. This is contrary to
fundamental principles of administrative law:

Proper
administrative interpretation of a statute, rule, or regulation must meet the
following three requirements: (1) the factual findings underlying the
interpretation must be supported by substantial evidence, Greater Orlando
Aviation Auth. v. FAA , 939 F.2d 954, 958 (11th Cir. 1991); HHS v. FLRA ,
885 F.2d 911, 915 (D.C. Cir. 1989) (citations omitted); (2) the agency must
offer a satisfactory explanation for its actions, Motor Vehicle Mfrs. Ass’n
v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43 . . . (1983); and (3)
the interpretation must be consistent with the statute, rule, or regulation
being interpreted, U.S. v. Larionoff , 431 U.S. 864, 873 . . . (1977).

Rocky Mountain Helicopters, Inc. v. FAA , 971 F.2d 544,
547 (10th Cir. 1992). The Secretary’s interpretation fails on all three counts.

First, there is no substantial evidence regarding the
comparative safety trade-offs presented by the two escapeways. The Secretary
can cite nothing in the record showing that he even considered this aspect,
even though his preferred route would have the miners remain underground for
hours longer. This also renders the explanation for his policy choice
unsatisfactory, as explained further below. Finally, in choosing to elevate one
clause of the standard — that requiring a “safe” location upon evacuation —
over the prime imperative to choose the most direct, safe and practicable
route, the Secretary has made a decision at odds with the express terms of the
standard.

The record clearly establishes that the operator’s
secondary escapeway to the 4 East Fan Portal is safer, more direct, and more
practical than the Secretary’s alternative route. First, it is much shorter. The
Secretary’s chosen alternative escapeway is to the West Lease Fan Portal, which
at 5.9 miles long is more than twice the distance than the 2.3-mile escapeway
via the 4 East Portal. Canyon Fuel Ex. 7; Tr. 49-50.

Additionally, the operator’s route has fewer
obstacles, such as overcasts, making it easier to traverse — especially with
injured miners. Further, this opening is the nearest to the active working
sections where miners would be working. The Secretary’s route requires 12
overcast crossings compared to 5 in the 4 East Portal. Canyon Fuel Exs. 2, 7;
Tr. 244, 247-48, 254.

While the Secretary downplays these difficulties, Gary
Leaming, Canyon Fuel’s safety manager, testified that the West Lease Fan Portal
is the most difficult escapeway to travel.

Tr. 243. Thus, the operator’s designated
escapeway provides the shortest, most direct route out of the active working
sections of the mine in the case of an emergency. Tr. 99, 207, 225-26, 297-98. This
must be the primary consideration, absent extreme conditions that would make
the shortest, most direct and practical route unsuitable for the safe
evacuation of miners.

The Secretary has not
explained why it must be preferable to expose miners to the hazards of a
longer, more arduous journey through the perils imposed by an underground mine
disaster. We concede that the conditions outside the mine at the 4 East Fan
Portal are not ideal, but they are outside the mine . Should an emergency
occur, the most urgent and primary concern is getting miners out of the mine
quickly and safely. 

Once miners have exited
the mine, they should ideally be in safe conditions away from dangers both
underground and on the surface. However, the issue before us is not limited to only
the route taken from the active workings to the outside, or only the conditions
encountered outside. The standard requires both. Here, neither option clearly
meets both of the standard’s criteria, and there is thus no “ideal”
alternative.

The question posed by
the standard, then, is “safe compared to what ?” The Secretary never
addresses this, and the failure to do so renders his choice impermissibly
arbitrary. It is a policy prerogative ungrounded on any consideration of the
real problem, whose resolution may have real-world, life-and-death consequences
for miners. 

Our colleagues seem
untroubled by the Secretary’s myopia and are more than willing to fill in the
interpretive gap by assuming that the Secretary’s alternative is safer, without
any evidentiary support for this logical leap. This is clear error:  

The Supreme Court
has stated that   “a rational
connection between the facts found and the choice made” would be a satisfactory
explanation, but that where the agency has failed to adequately supply this,
“[t]he reviewing court should not attempt itself to make up for such
deficiencies; we may not supply a reasoned basis for the agency’s action that
the agency itself has not given.”

Rocky Mountain Helicopters ,
971 F.2d at 548, (quoting Motor Vehicle Mfrs. , 463 U.S. at 43 (citations
omitted)).

Thus, we cannot assume that the Secretary has a good
reason for his policy choice: It must be shown. T he
Secretary is obliged to supply a rationale and a factual basis that takes into
account the relative risks and benefits of each route and must articulate a
reasoned judgment as to why his route — clearly not the most direct, safe or
practical, in terms of the route itself — must be adopted. The record is
entirely barren of such proof.

We note that the agency
has created the tension here between the competing obligations of the standard
by questioning the previously-approved escapeway. The Secretary must thus “ acknowledge
and account for a changed regulatory posture the agency creates.” Portland
Cement Ass’n v. EPA , 665 F.3d 177, 187 (D.C. Cir. 2011). This duty, too,
has been ignored. Indeed, the Secretary appears entirely oblivious to the
requirement to exercise a thoughtful, comparative analysis before choosing
between two less-than-perfect alternatives.

When the question of
regulatory interpretation involves a choice between two options, neither of
which clearly meets the requirements of the standard, the question is not
really one of interpreting the meaning of each term contained in the regulatory
standard. Rather, the inquiry focuses on whether the Secretary has demonstrated
that the operator’s choice is either not compliant with the plain terms of the
standard or, as is the issue in this case, is not a “suitable” choice. Cf.
Peabody Coal Co. , 18 FMSHRC 686, 690-91 (May 1996) (stating that in plan
disputes, the Secretary bears the burden of proving to the Judge that an
operator’s proposed plan or revision was unsuitable to the mine, which is
reviewed by the Commission under the substantial evidence standard); Prairie
State Generating Co. v. Sec’y of Labor , 792 F.3d 82,  90-91 (D.C. Cir.
2015) (noting that the plan approval process is akin to notice-and-comment
rulemaking, in which mine operators receive written notice of reasoning and
bases for the Secretary’s initial plan-suitability determination).

Here, the issue is
whether the Secretary has proven that the operator’s 4 East Fan Portal, which
clearly is the most direct, safe and practical route to the nearest mine
opening, was not “suitable for the safe evacuation of miners.” When
viewed properly against the gravamen of the Secretary’s policy choice, the
evidence does not support the Secretary’s finding of a violation of section
75.380(d)(5).

As our colleagues acknowledge, the Secretary’s burden
is “to prove that, as compared to the [operator’s] designated route, there is
at least one other escapeway route that [he] has determined more closely
complies with the standard’s requirement.” Southern Ohio Coal Co. , 14
FMSHRC 1781, 1785 (Nov. 1992) (emphasis added). Hence, our colleagues explain
that the Secretary must show “that the operator’s route is not the most
direct, safe and practical route to a mine opening suitable for the safe evacuation
of miners.” Slip op. at 9.

Having correctly stated the law, our colleagues fail
to apply it. The Secretary’s failure to meet the burden stated in Southern
Ohio Coal is manifest in this case. He has not explained why the most
direct, safe and practical route out of the mine is less acceptable — indeed, un acceptable
— because the relative safety of the operator’s route likely puts them in
greater danger than the alternative route.

The facts clearly do not support the Judge’s finding
that the operator’s route does not meet the requirements of section
75.380(d)(5) because the Secretary focused entirely on only one part of a
binary standard. The Secretary must concede that the operator’s route is superior
as an evacuation route. But he asserts that the imperfect refuge available at
the 4 East Fan Portal renders the escapeway “[un]suitable for the safe
evacuation of miners.”

In so doing, the Secretary posits the extreme example
of a route which terminates at a plummet into space. Yet this amounts to a reductio
ad absurdum . Obviously, an escapeway that exposes miners to a deadly hazard
on their exit from the mine would not constitute a “safe evacuation.” But
miners exiting from the 4 East Fan Portal would not have faced the certain
death postulated by the Secretary’s hypothetical. On the contrary, the miners
would have been “safely evacuated from the mine.”

Whether they would be safe enough, relative to the
alternative approach — which would have confined them inside the mine for hours
longer, but would have ensured better egress from the mine site to medical
treatment facilities — is a valid question. The problem is that the Secretary
never seeks to address that question.

The answer is essential. As the Supreme Court has
noted, “[n]o regulation is ‘appropriate’ if it does significantly more harm
than good.” Michigan v. EPA , 135 S. Ct. 2699, 2707 (2015). In
order to determine whether the Secretary’s approach conforms to this standard,
he must consider the alternatives and compare their relative costs and
benefits. He has failed to do so here.

Instead of making a
qualified determination that the record cannot support, our colleagues focus
instead on the surface conditions outside the 4 East Fan Portal in isolation,
and argue for an interpretation of section 75.380(d)(5) that extends beyond the
plain language of the standard. This interpretation disregards Commission
precedent governing the interpretation and application of, and compliance with,
standards applicable during emergency conditions.

We have previously
agreed with the Secretary’s contention that violations of standards that become
relevant only during a mine emergency must take into account the occurrence of
the emergency when determining if the violation is S&S. Cumberland Coal
Res., LP , 33 FMSHRC 2357, 2366-67 (Oct. 2011), aff’d , 717
F.3d 1020 (D.C. Cir. 2013). Ironically, the Secretary has generally failed to
contemplate the type of emergency that would require an evacuation in this case.

We must assume that
this would be a severe emergency requiring evacuation of the workforce. The
emergency must be of such nature as to render the primary escapeway unsuitable,
because our concern in this case lies entirely with the secondary escapeway. Further,
we must acknowledge certain conditions the Secretary does take into account,
including numerous injured miners, some with serious injuries that would
require professional medical attention, and the presence of noxious gases
emanating from the mine. Indeed, section 75.380 is in Subpart D of Part 75,
which provides the mandatory standards for mine ventilation. The problem with
the Secretary’s thesis is that it utterly disregards the fact that these
conditions, especially smoke and gases, would also exist inside the mine, an
environment in which the miners would be confined for several hours longer if
egress were required instead from the West Lease Fan Portal alternative
preferred by the Secretary.

As noted above, the
Secretary offers no proof that he ever has considered the relative risks and
benefits of the two alternatives or that he has reached a determination that
fairly contemplates the qualitative differences between a route that is more
direct, safer and more practical — increasing the likelihood of a successful
escape from the dangers inside the mine  — versus a route that may afford
better survivability once the miners have exited the mine. Instead of assuming
the emergency, the Secretary assumes a safe exit through a more arduous route. This
is, tragically, not a valid assumption in a mine-wide emergency.

Clearly, the standard
at issue is not concerned solely, or even primarily, with surface conditions
outside a mine portal. In skewing the analysis toward that consideration,
though, the Secretary, the Judge, and our colleagues fail to take into
consideration the overwhelming evidence that the 4 East Portal is the most
direct, safe and practical route to the nearest mine opening.

As we noted before,
this is not a case of self-evident unsuitability. [12]
There is no contention that the portal was obscured, inaccessible, or otherwise
unusable. Our colleagues’ entire decision rests on the theory that the
surrounding area outside the portal was not suitable because it failed to
ensure ready and immediate access to professional medical care. However, that
is not what the standard requires, and pretending as though it does disregards
the fact that miners inside the mine would also be denied such care until they
have been successfully evacuated.

Our colleagues contend
that to interpret the regulation in any limiting manner that excludes
consideration of the surface conditions would undermine the purpose of the
standard. However, they fail to address the fact that the regulation makes no
mention of surface conditions and does not identify specific requirements that
would apply to surface conditions surrounding a mine portal access to an
escapeway. [13] Significantly, the remaining
provisions of section 75.380(d) in particular address other characteristics of
the escapeway, such as suitability for injured miners to traverse, the height
and width of the passageway, clear markings along the route, and the provision
of certain safety equipment on the route, among other requirements related to
the underground conditions of the escapeway. Nowhere in the entire provision
does it address or define suitable surface conditions at the mine portal.

The concerns our colleagues raise about emergency
vehicle access to injured miners after they have left the mine is addressed in
another provision, which the Secretary cited in this case and which the
Commission has unanimously sustained. Slip op. at 4-5. We agree that miners
need access to emergency services and remote locations present problems with
facilitating that. However, section 75.380(d)(5) does not address this
requirement, expressed in section 75.1713-1(b). Interpreting section
75.380(d)(5) to require expedited access to medical care is unnecessarily
duplicative of section 75.1713-1(b).

Our colleagues also rely on speculative evidence of
contaminated air exiting from the mine portal onto the miners at the landing as
evidence of the unsuitability of this escapeway. Slip op. at 10 n.10. But the
Secretary did not offer reliable evidence about the operation of the fan, and
our colleagues’ affirmance of the Secretary’s opinion disregards that the
noxious air that concerns them so would be coming from inside the mine. [14]

In sum, the Secretary
proposes a half-considered regulatory solution in contravention of well-settled
tenets of administrative law. See Motor Vehicle Mfrs Ass’n , 463 U.S. at
43 (“[A]n agency rule would be arbitrary and capricious if the agency . . .
entirely failed to consider an important aspect of the problem. . . .”). We
understand our colleagues’ concerns and agree that an effective escapeway must
not only provide a safe passage for miners to get out of the mine, but must
also lead them to a safe location once outside of the mine. But substantial
evidence does not demonstrate that the Secretary even considered, let alone
made a reasoned determination in concluding, that the operator’s designated
route was inherently unsuitable for the safe evacuation of miners.

Accordingly, we would
vacate and reverse the Judge’s decision and vacate Citation No. 8483766 as
the product of arbitrary and capricious decision making.

III.

Conclusion

For the foregoing reasons, we conclude that Canyon Fuel had
adequate notice that it was not in compliance with section 75.1713-1(b) and
affirm the Judge’s decision with respect to Citation No. 8480766. With respect
to Citation No. 8483766, two Commissioners vote to affirm the Judge’s decision
and two Commissioners vote to reverse. Accordingly, the Judge’s decision as to
that citation stands as if affirmed. Pennsylvania Elec. Co. , 12 FMSHRC
1562, 1563-65 (Aug. 1990), aff’d on other grounds , 969 F.2d 1501 (3d
Cir. 1992).

/s/
William I. Althen

William
I. Althen, Acting Chairman

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Michael G. Young

Michael
G. Young, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

[1] A third
citation, No. 8483666, was vacated by the Judge, and the Secretary of Labor did
not appeal. 38 FMSHRC 2205, 2227 (Aug. 2016) (ALJ). Accordingly, Docket No.
WEST 2015-677-R is no longer at issue.

[2] The
standard requires that escapeways “shall 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).

[3] The
standard requires operators to “make arrangements with an ambulance service, or
otherwise provide, for 24-hour emergency transportation for any person injured
at the mine.”  30 C.F.R. § 75.1713-1(b).

[4] An overcast
is an “enclosed airway that permits an air current to pass over another one
without interruption.” Am. Geological Institute, Dictionary of Mining,
Mineral, and Related Terms 384 (2d ed. 1997). Ramps or stairs are built to
allow miners to cross over the overcast. Tr. 53-54, 182-83.

[5] Canyon Fuel
devoted little or no attention in its brief to contesting the violation. At
oral argument counsel for Canyon Fuel prudently stated that its arguments on
appeal were focused upon the notice issue. PDR at 11; Oral Arg. Tr. 14, 66.

[6] In addition,
the record indicates that Canyon Fuel had never contemplated how injured miners
would be rescued from the area prior to Inspector Riley’s visit in June of 2014.
Tr. 24-25.

[7]
Where the language of a regulatory provision is clear, the terms must be
enforced as they are written unless the regulator clearly intended the words to
have a different meaning, or unless such a meaning would lead to absurd
results. See Dynamic Energy, Inc. , 32 FMSHRC 1168, 1171 (Sept. 2010); Island
Creek Coal Co. , 20 FMSHRC 14, 18-19 (Jan. 1998). If the language is
ambiguous, the Commission generally defers to the Secretary’s interpretation
unless it is unreasonable, i.e., it is plainly erroneous or inconsistent with
the regulation, or there is reason to suspect that it does not reflect fair and
considered judgment. Drilling and Blasting Syst., Inc. , 38 FMSHRC 190,
194 (Feb. 2016) (citing Auer v. Robbins , 519 U.S. 452 (1997);
Christopher v. SmithKline Beecham Corp. , 567 U.S. 142, 155 (2012)); Island
Creek , 20 FMSHRC at 18-19.

[8] We fail to
understand why our colleagues assert that the Secretary’s interpretation of
section 75.380(d)(5) “extends beyond the plain language of the standard.” Slip
op. at 15. The standard requires that the mine opening at which the escapeway
terminates be “suitable for the safe evacuation of miners.” 30 C.F.R. §
75.380(d)(5). The Secretary’s concern for “safe evacuation” at the surface
clearly is within the standard’s plain language. See infra p. 6.

[9] Because we
rely on the plain meaning of the standard, we need not address Canyon Fuel’s
claim that the Secretary’s interpretation is undeserving of deference because
it is inconsistent with prior interpretations. However, even if it were
otherwise, the claim would be unconvincing. Canyon Fuel notes that MSHA’s
Program Policy Manual (“PPM”) focuses on underground conditions. V MSHA, U.S.
Dep’t of Labor, Program Policy Manual , Part 75, at 42-43 (2015). However,
the relevant section almost directly quotes the preamble, so the same analysis applies.
See supra pp. 7-8. Regardless, “the Commission has never held that the
Secretary is bound by the recommendations in a PPM.” Big Ridge, Inc ., 37
FMSHRC 213, 216 (Feb. 2015).

Canyon
Fuel also notes that the Secretary has never before taken issue with the
surface conditions at the portal. However, prior inconsistent enforcement does
not constitute a viable defense. See U.S.
Steel Mining Co., Inc. , 15 FMSHRC 1541, 1546-47 (Aug. 1993); King
Knob Coal Co. , 3 FMSHRC 1417, 1421-22 (June 1981). An individual
inspector’s decision not to issue a citation (or failure to notice a violation)
does not create a binding interpretation on behalf of the Secretary. As the
Judge found, the “Secretary’s failure to enforce the safety standard at the
Sufco Mine until District Manager Riley’s visit is more accurately attributed
to a lack of attention by MSHA than to a change in the interpretation of the
standard.” 38 FMSHRC at 2217.  District Manager Riley should be commended for recognizing
the potential danger to miners evacuating out of the 4 East Fan Portal.

[10]
With regard to potential hazards, the Judge also noted that miners stranded on
the ledge could be exposed to gas and smoke. 38 FMSHRC at 2218. Canyon Fuel
contests this, stating that exhaust from the fan would disperse any gases. Of
course, this assumes that the emergency which prompted the evacuation did not
affect the operation of the fan. Regardless, even without the added hazard of
exposure to toxic fumes, miners still potentially face being stranded in
inclement weather without medical assistance.

Canyon Fuel argues that neither harsh weather nor
unavailability of medical care is relevant here. It states that concerns regarding
exposure are addressed because miners can take shelter in the buildings on the
ledge. Oral Arg. Tr. 11. However, shelter and evacuation are fundamentally
different; if a miner is trapped in a building surrounded by hazardous
conditions, he has not been moved away from the danger — particularly if the
miner is injured and in need of medical attention. Canyon Fuel also states that
medical assistance is more properly addressed by section 75.1713-1(b). However,
the standards are different in scope. Section 75.1713-1(b) focuses on the
transportation of injured individuals, whether or not there has been a mine
emergency. Section 75.380(d)(5) focuses on ensuring that all miners can be
evacuated during a mine emergency without being unduly exposed to hazards, one
of which might be the exacerbation of injury due to the unavailability of
medical care.

[11] Our
colleagues assert that the Secretary failed to consider the “relative risks and
benefits” of each route. Slip op. at 13-14, 16. They overlook that District Manager
Riley considered various alternative routes for the secondary escapeway, taking
into consideration the most direct route, among other factors. Tr. 49-56. More
importantly, the Secretary’s assessment did not rest on a pure cost-benefit
analysis. Rather, the Secretary’s finding of a violation is based on the fact
that the existing escapeway to the 4 East Fan Portal failed to meet a basic
requirement of section 75.380(d)(5). The termination point of this escapeway
failed to provide for “safe evacuation of miners,” as the standard requires,
and thus was not “suitable.” 30 C.F.R.

§ 75.380(d)(5); Tr. 40-41; Sec. Br. at 26-27.

Our
colleagues further assert that “the agency has created the tension here between
the competing obligations of the standard by questioning the previously-approved
escapeway.” Slip op. at 14. In so arguing, our colleagues overlook the facts
that (1) when asked by Riley, mine personnel said that they had never
considered and did not know how to evacuate miners from the ledge at the 4 East
Fan Portal (Tr. 24-25); (2) after his discussion with mine personnel in June
2014, Riley did not issue a citation because he understood that Canyon Fuel
would consider alternatives to the existing escapeway (Tr. 38); and (3) during
the next nine months, Canyon Fuel not only failed to consider relocating the
escapeway but did not even contact a helicopter service to inquire about
emergency evacuation from the 4 East Fan Portal. Tr. 267. Hence, rather than “creat[ing]
the tension,” MSHA acted in a measured way, and only issued a citation after it
became clear that Canyon Fuel would not act to resolve the problem of unsafe
evacuation at the termination of the alternate escapeway.

[12] Our
colleagues somehow believe otherwise, asserting that the Secretary’s representative
did make a determination that the East Fan Portal route was per se unsuitable
because it would not safely evacuate the miners. See slip op. at 11
n.11. That is patently false. The miners would in fact be outside the mine, with
indoor shelter, provisions, and rudimentary first-aid available, not a plummet
into the abyss as suggested by the Secretary. The problem is the Secretary’s
utter failure to consider the vast, gray expanse between evacuation to perfect
safety and ejection into the abyss. This case is thus entirely about relative
safety, because neither condition of the standard may be ideally served.

[13]
Our colleagues even dismiss that the agency
limited its consideration of escapeway factors, in both the rule’s preamble and
MSHA’s Program Policy Manual, to only underground conditions. They state that
the agency could not have foreseen every possibility that could arise and would
need to be addressed by the rule. Slip op. at 7-8. However, underground coal
mining, which is an inherently dangerous occupation, clearly occurs in remote
geographic regions, and the requirement for 24-hour access to emergency medical
care was clearly contemplated by MSHA and is addressed in a separate rule. See
30 C.F.R. § 75.1713-1(b); slip op. at 4-5. Crafting an interpretation that
extends the application of the rule to matters beyond the explicit terms of the
rule is tantamount to creating a rule without engaging in mandatory rulemaking,
which is a violation of the APA. See RAG Shoshone Coal Corp. , 26
FMSHRC 75, 82-87 (Feb. 2004) (holding that a change in occupational code
amounted to substantive rule change, rather than an interpretation, requiring
rulemaking).

[14] The
Secretary has argued that the mine’s ventilation system “could be blowing toxic
gases out of the air.” Oral Arg. Tr. 40. There is no factual basis for assuming
that the ventilation system in the mine will continue to function in an
emergency that requires evacuation of the workforce. Indeed, numerous standards
presume that miners will be inundated in smoke and will require supplemental
air. See, e.g. , 30 C.F.R. § 75.380(d)(7) (lifelines required due to
presumed poor visibility); 30 C.F.R. §§ 75.1506(c)(2), 75.1714-3, 75.1714-4
(SCSRs mandated at intervals to ensure miners will have access to emergency air
supplies).