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 ...
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