Canyon Fuel Company v. Secretary of Labor ( 2018 )


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  •                                                                                     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.
    37
    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.
    40