Canyon Fuel Co. v. Sec'y of Labor
| Decision Date | 10 July 2018 |
| Docket Number | No. 17-9541,17-9541 |
| Citation | 894 F.3d 1279 |
| Parties | CANYON FUEL COMPANY, LLC, Petitioner, v. SECRETARY OF LABOR; Federal Mine Safety and Health Review Commission, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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.
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.
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 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.
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 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 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 ") ( 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 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.
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.
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