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# United States Court of Appeals For the Seventh Circuit

No. 13-1659

P E AB ODY M I D WE S T M I N I N G , LLC, former ly doing bu siness as B L A C K B E AUT Y C OAL C OMPANY

, Petitioner,

v.

F E D E R AL M I N E S AF E T

Y AND H E AL T H R E VI E W C OMMI S S I O N

, and S E C RE TAR

Y OF L AB OR

, Min e Safety and Health Admini strat i on, Responden ts.

Peti tio n fo r Review o f an Order ofthe Feder al M i ne Safety and Heal th Rev i ew Co mmissio n.
A RGU E D D E C E MB E R 10, 2013

— D E C I D E D A UGUST 12, 2014

Before M AN I O N

, R OVN E R

, and H AMI L T ON

, Circ uit Judges. R OVN E R , Cir cui t Judge. An inspec tor of the Min e Safety and Health Admini stra t i on ci ted Black Beauty Coal Company (wh i ch since ha s changed i ts name to Peabody Midwest2 No. 13-1659
Min ing, LLC) for violati ng a federal reg ulati on requiring a prot ecti v e mound, or “berm,” a l o ng “the outer bank of elev ated ro adw ays.” See 30 C.F .R. §§ 77.1605(k), 77.2(d). Black Beauty contested the ci tation before an A d minis tr ativ e Law Judge of the Feder al Min e Safety and Health Review Commi ssi on, but the ALJ upheld the ci tation, and Black Beauty sought
rev i ew by th e C o mmis si on. The Commi ssi on remanded the
case to the ALJ, who again upheld the ci tation. The C ommi ssi on deni ed further r eview

. Black Beauty now petiti ons for rev i ew of the ALJ’s or der on remand. See 30 U.S.C. § 8 1 6 (a)(1). For the reasons described below , w e deny the pet i tion. I. Black Beauty oper ates surfac e coal mines in W y omi ng, Illi noi s, and Indi ana

. The ci tation that i s the subject of thi s ap p eal w as i ssu ed on Sept ember 11, 2007, at the So merville Centr al Min e in Gibson C o un ty , Indi ana. An inspec tor had been at So merville fi v e days earlier and i ssu ed tw o ci tations for berms that w ere too low , one stre t ch ing fo ur tenths of a mi le along a ro adw ay descen ding into the mine pi t and the other at a dumping location. See 30 C.F .R. § 77.1605(l). A second inspec tor who knew about these earlier ci tations
arr i v ed on Sept ember 11 to v erify that the defi ci ent berms had been remedied. At the tim e Black Beauty w as in the process of moving a dragline, a mass i v e pi ece of excav atin g equi pment, across a ledge cut into the si de of the pi t, called a “bench .” Each bench i s used as a ro ad to mov e v ehi cles and w or ker s thro ughout the mine. Berms, whi ch are mounds of di rt and not cement barriers or permanent structures, line each bench to prev entNo. 13-1659 3
wheeled v ehi cles fr o m r olli ng ov er the edge and down the steep drop to the next lev el, in t his case 50 feet below

. At i ts wi dest poin t, the be nc h where the dragline w as located w as 200 feet across and 50 feet abov e the pi t floor

. The dr aglin e i n thi s case, calle d “ Peabody ,” w ei ghs ov er 5,000 tons; i t mov es by taking 8-foot “steps” wi th i ts feet or shoe s, t r av eling only 450 to 500 feet per hour

. T o faci lit a t e the mov e a bulld ozer t r a v els in front of the dragline and adjusts the hei ght o f t he berm by push ing dir t t o o r fr om i t. The berm here w as decreased to three feet tall fr o m at least fi v e feet tall before the
mo ve to allow more ro om for the dragline to maneuv er

. The bulld oz e r a l so smooths out the unev en surfac e on the bench left by the dragline and rebui lds the berm after the dragline has pass ed. During the mov e the dragline brok e down and req uir ed servicing, for whi ch Black Beauty empl oy ees drove service tr ucks onto the bench

. Accordi ng to the inspec tor , the bench on whi ch the dragline w as being mov ed di d “not hav e a berm for a di stance of approx i mately 2/10 of a mi le,” y et serv i ce trucks ha d been driv en onto that stret ch and wi thi n 18 feet of t he edge. The inspec tor i ssu ed a cit a tion under 30 C.F .R. § 77.1605(k) and conclu de d t ha t the violati on w as si gni fi cant and sub st a nt ia l becau se the lack of a berm could result in a permanently dis abling i njury

. Black Beauty conte s te d the ci tation, asserti ng that the bench di d not consti tute a “ro a d w ay” whi le the dragline w as being mov ed, since mine v ehi cles w ere not also tr av eling on i t duri ng that tim e. Thus, the company arg ued a berm w as not required. The few v ehi cles on the bench duri ng the mov e, Black Beauty pressed, w ere there only to assi st th e mo v e. And becau se the4 No. 13-1659
bench w as in poor co ndi tion caus ed by the dragline mov e, Black Beauty conclu ded, only slow tr av el w as possi ble, whi ch made the ris k of injury or inci dent low

. An oper ations manager from Black Beauty added that, ev en i f the ben ch sti ll w as a
r o a d w a y whi le the dragline w as being mov ed, the 3-foot “remnant berm” flanking i t w as at least as tall as the mi d-axle hei ght of the large st v ehi cle tr av eling o n t he bench , and so, according to the manager , a berm sati sfying the reg ul ation remain ed in place. An ALJ rej ected Black Beauty’ s arg uments. She deci ded that the presence of ev en one rubber -ti red v ehi cle on the bench render ed i t a ro adw ay and mandated a berm. The ALJ a l so deter mined that the r emnant berm remain ing on the bench duri ng the dragline mov e w as not tall enough, and thus Black Beauty had violat e d § 77.1605(k). The lack of an adequate berm, the ALJ conti nued, created a ris k that a tr uck w ould v eer ov er the edge of the bench and down the steep incline. W ere a tr uck t o tak e such a fall, the ALJ c oncluded, there i s a reasonable li kelih ood that seri ous injury w ould result, and thus the violati on w as si gni fi cant and sub stanti al. See Secretary of Labor

v
. Mathies Coal Co. , 6 FMS HR C 1, 3–4 (1984). The ALJ also deci ded that, becau se Black Bea uty w as on notic e that i t needed ade q ua t e berms based on the earlier ci tations, i ts fai lure to prov i de a berm on thi s bench , ev en duri ng the dragline mov e, w as “unw arr antable,” defined as “aggr av ated conduc t consti tuting mo re than or dinary negli gence.” See Emery Mi n i n g C orp. v
. Secretary of Labor , 9 FMS HRC 1997, 2001 (1987); Buck Creek Coal , In c
. v
. Fed. Mine Safety & Health Admin. , 52 F .3d 133, 136 (7 t h Ci r
. 1995). Black Beauty w as penali zed $4,329.No. 13-1659 5
Black Beauty then petiti oned the Commi ssi on to rev i ew the ALJ’s deci si on. The Commi ssi o n a g r eed wi th the ALJ’s conclu si on t ha t t he bench w as a ro adw ay when the ci tation

w as i ssu ed, though i t di sagreed wi th the ALJ’s reasonin g that t he presence of a single rubber -ti red v ehi cle on the ben ch render ed i t a ro adw ay

. During the mov e, the Commi ssi on explain ed, a rubber -ti red backhoe w as used to assi st and remain ed on the bench; the dragline mov e, there fo re, di d not alter the usu al state of the bench as a ro adw ay and a berm sti ll

w as required. The Commi ssi on a l so poin ted out a contradic

tion betw een the ALJ’s or der and the recor d: The ALJ had sai d that the parties di d not di spute that there w as a remnant berm
on the bench

, y et the Secret ary had asserted that no berm w as pres e nt along a secti on of the bench

. The Commi ssi on thus

v acated the ALJ’s deci si on and remanded the ca se for her to clari fy and explai n the basi s for her deci si on. On remand the ALJ rev i ew ed t he he aring tr ansc ripts and credi ted the inspec tor ’s testim ony that he saw no berm for tw o tenths of a mi le when he i ssu ed the ci tation. The ALJ also

r e iter ated her finding that a seri ous injury w as reason a bl y li kely to occur becau se of the lack of a berm. She again conclud ed that the violati on w as si gni fi cant and sub stanti al and an “unw arr antable fai lure” to follow the reg ulati on, based on the
reasons giv en in her or i gin al deci si on. B l a ck Beauty again sought rev i ew

, but thi s tim e th e Commi ssi on deni ed the request. The ALJ’s deci si on becam e final 40 days after i t i ssu ed. See 30 U.S.C. § 823(d)(1). II.6 No. 13-1659
W e rev i ew the Commi ssi on’s factual findings for subs tantial evidenc e. 30 U.S.C. § 816(a)( 1); Mach Mining, LLC v
. Secretary of Labor

, 728 F .3d 643, 659 (7th Ci r
. 2013). W e wi ll set asi de the factual findings of the ALJ, whose opin i on becam e the final deci si on, onl y i f they are not supp or ted by sub stanti al
e v i dence. Zeigle r Coal Co. v
. Offic e of W orkers’ Comp. Programs , 490 F .3d 609, 614 (7th Ci r
. 2007); Kenn ellis ENer gies, Inc. v
. Hallmark , 333 F .3d 822, 826 (7th Ci r
. 2003). The ALJ’s credibi li ty deter minati on s are rev i ew ed for abus e of di screti on; conclu

si ons of law are rev i ew ed de nov o. Mach Mining, LLC, 728 F .3d at 659. Black Beauty fi rst maintains that the Commi ssi o n incor
rectly conclu ded that the bench w as a ro adw ay whi le the dragline w as being mov ed and arg ues that t he damage to t he bench caus ed by the dragline render ed i t inoperable a s a ro adw ay duri ng that tim e. Instead, according to Black Beauty , the bench becam e a “broad, ro ck-marked expanse of gr ound,” unli ke a r oadw ay

. The ter m “ro adw ay” i s no t d e fined in any statute or reg ulatio n, but the Commi ssi on in i ts deci si ons has giv en gui dance for deter mining when to apply that l a be l. For example, in Secretary of Labor v
. Capitol Aggregates, Inc. , 4 F MS HRC 846, 847 (1982), the Commi ssi on deci ded that an elev ated area, inclu ding a bench , w as a ro adw ay becau se i t “w as used to drive a p i ece of mach inery back and fort h ov er the s tr ucture.” The Commi ssi on noted that i ts conclu si on w as “ro ote d in common u sage” and “flows from a common sens e appli cati on of the standard to the facts.” Id

. The Commi ssi on also deci ded in Secretary of Labor v
. El Paso Rock Qu arri es, Inc. ,No. 13-1659 7
3 FMS HRC 35, 36 (1981), that a bench on whi ch haulage tr ucks tr av eled w as an elev ated r oadw ay

. The Commi ssi on in thi s case rev i ew ed the evidenc e showing that Bla c k B e au ty’s v ehi cles tr av el on the bench before dragline mov es and after the mov e i s complete, prim arily fo r hauling purposes. The parties agr ee that the bench i s a ro adw ay duri ng those ro uti ne mining oper ations

. But the Commi ssi on al so noted that whi le the dragline i s being mov ed, whi ch
occurs ev ery 7 to 10 days, rubber -ti red service v ehicles continue to use the bench to assi st in the mov e. A backhoe follows the dragl ine a nd carr i es its cable, and if the dragline needs to be serviced or repaired duri ng the m ov e, service tr ucks tr av el
on the bench to a nd fr om the dragline. The Commi ssi on concluded that the conti nuous use of the bench by service or ha ulage tr ucks left unchanged the status of the bench a s a ro adw ay ev en during the dr aglin e mov e. W e conclu de that sub stanti al evidenc e sup p o rt s t he Commi ssi on’s deter minati on. Whi le at the m inin g s i te, the inspec tor observ ed tire tr acks on the b ench and a tr uck parke d near the dragline. T

w o m iners had driv en the tr uck along the bench to th e dragline to complete repairs whi le the dragline w as i dle. Although the tr uck may no t hav e been tr av eling along the bench whi le the dragline w as moving, i t w as o n the bench when the dragline w as stopped, which i s when the inspec tor
arr i v ed and not i ced the lack of a berm. It may be that service

v ehi cles are not driv en on the bench whi le the dragline actually i s moving, and there fore a berm w ould not be required. But the evidenc e shows that in thi s case the dragline w a s d o wn for repairs, and service tr ucks had resumed driving on the bench , using i t as a ro adw ay the same as during normal min ing8 No. 13-1659
oper ations

. Addi tionally , ev e n if the dragline does leav e behind i t a surfac e on whi ch v ehi cles cannot be driv en, as Black Beauty a rg ues, the area in front of the dragline remain s smooth. That area o f the bench , whi ch i s where the ti re tracks

w ere found, sensi

bly can b e consi dered a r oadw ay

. Black Beaut y next contends t hat the ALJ’s co nclusi on that the comp any violated § 77.1605(k) i s not supp or ted by
s ub s tan ti al evidenc e becau se no wi tness testifi ed that the b e n ch lacked a berm. Instead, Black Beauty insi sts, there w a s t esti

mony that a remnant b erm s till w as in place when the inspec
tor arr i v ed. That remnant, Black Beauty says, w as hi gher than the mi d-axle hei ght of the large st v ehi cle on the bench , and so, the company conclu des, i t sati sfi ed the requirement for a berm. And i f there w as a violati on, Black Beauty contends, i t w as not si gni fi cant and sub stanti al becau se, the c om p a ny posi ts, a mine
w or ker w ould not hav e been reasonably li kely to suffer a sub stanti al injury becau se o f the lack of a berm. Black Beaut y instead opin es that a driv er “may” hav e faced injury based on evidenc e that only one truck had tr av eled close to the edge of the bench

, and any v ehi cles had to driv e slowly , i f driv en at all, becau se of t he damage to the surfac e of the bench caus ed by the drag line. W e find sub stanti al evidenc e to credi t the ALJ’s conclu si on that B l ack Beauty violated § 77.1605(k) by fai ling to maintai n a berm on tw o tenths of a mi le of the bench

. The ALJ recounted the testim ony of the inspec tor , who had 15 y ears exper i ence in mining and 18 as a mine inspec t o r , that when he arr i v ed at So merville Centr al Min e he observ ed a segment o f the bench where “ t here were no berms, zer o berms.” Elabor ation about that observ ation i s unnec essary

. See Buck Creek Coal , 52 F .3d atNo. 13-1659 9
135 (acc eptin g as sub stanti a l evidenc e opin i on of single mine inspec tor ). Although an op e ra ti on s m a n a ge r fro m B l a c k B e a uty testifi ed that a remnant berm of 16 or 17 inches remain ed whi le the dragline w as mov ed, the A L J credi ted the inspec tor ’s testim ony that no berm remain ed. W e defer to that credibi li ty deter minati on, and B l a ck Beauty giv es us no reason to doubt i t. Mor eov er

, Black Beauty has not poin ted to any reg ulati on that says a remnant berm of a speci fi c hei ght wi ll su ffic e to meet § 77.1605(k). In the absenc e of sub stanti al evidenc e to the contrar y , w e accept the findings of the ALJ. W e also find no reason to di sturb the ALJ’s conclu si on that Black Beauty’s violati on of § 77.16 50(k) w as si gni fi cant and sub stanti al. A violati on i s si gni fi cant and sub stanti al i f i t could lead to some di screte hazard, the hazard w as reasonably li kely to result in injury

, and the injury w as r e a so na bl y li kely to be reasonably seri ous. Buck Creek Coal , 52 F .3d at 135; Mathies Coal Co. , 6 FMS HRC at 3–4. W e already hav e conclu d e d that a violati on occurred, and the p a r ties do not di spute that the violati on led to a ha z a r d —a v ehi cle could v eer off the bench and fall possi

bly 50 feet. Black Beauty arg ues that i t i s not reasonably li kely that a v ehi cle w ould hav e t rav eled off the edge of the bench wi thout the presence of a ber m. But the questi on i s not whether i t i s li kely that the ha zard (a v ehi cle plumm eting ov er the edge) w ould hav e occurred; instead, the ALJ had to deter mine only whether , i f the hazard o cc ur r e d (regar d l e ss of the li kelih ood), i t w as reasonably li kely that a reasonably serious injury w ould result. The ALJ deter mined t hat if a t r uck tr av eling on the bench

w as to swerv e ov er the edge and fall to t he surfac e below , i t
w as at least reasonably li kely that the occupan ts of that v ehi cle10 No. 13-1659

w ould sus tain a seri ous or potent i ally fatal injury

. Common
sens e tells us that the ALJ’s conclu si on w as corr ect. It i s hard to pi cture a scen ario where a large service tr uck careens ov er the edge of a ro adw ay 50 feet abov e gr oun d , ro lls down a steep incline to the gr ound below , and those insi de the tr uck are not si gni fi cantly injured. Becaus e a reasonably seri ous harm w as at least reasonably li kely

, w e agr ee wi th the ALJ’s conclu si on that thi s vi olation w as si gni fi cant and s ubs tantial. Last, Black Beauty contests t ha t the ALJ’s finding that the lack of a berm evinc ed an “unw arr antable fai lure”—more than
or dinary negli ge n c e

— b y B l a c k B e a u ty to follow the reg ulati on. Black Beauty arg ues that th e past ci tations i t faced for berm violati ons di d not necess arily render i t on notic e of future violati ons. I n t hi s case, Black B e a ut y conclu des, t he Secret ary proffere d no evidenc e showing a simil a r i ty betw een the past violati ons and the one now on appeal that w ould have p ut i t on notice that i t had i nsu ffi ci ent berms. Sev eral factors w ei gh into the ALJ’s analysi s of whether a violati on w as “unw arr antable,” inclu ding the length of tim e the v io l a tion has exis ted, the ext ent of the violati on, whether the violator w as on notic e that gr eat e r efforts w ere necess ary for compli ance, and wh e t he r the violator knew of and attempted to cure the violati on. Secretary of Labor v
. Consolidation Coal Co. , 22 FMS HRC 340, 353 (2000). The ALJ found thi s violati on to be unw arr antable, emphasi zing the ext ent o f the violati on (any one could acces s and tr av el the ro ad on the bench whi le the berm w as removed) and t he notic e that Black Beauty had before being ci ted fo r t he violati on. Only fi v e days earl ie r a no ther inspec tor had ci tedNo. 13-1659 11 Black Beauty for inadequate berms attw o locations along the bench

. The inspec tor testifi ed that t hose ci tations put So merville Central Mine on “hi gh notice”that i t needed taller berms. So not only di d Black B e a ut y know that berms w ere required, i t also knew that i ts prev i ous efforts to comply w ere not enough. That means the violati o n should hav e been obvious to Black Beauty

. See Secreta ry of Labor v
. IO Coal Company , Inc. , 31 FMS HRC 1346, 1356 (2009); Secretary of Labor

v
. New W

arwick Mining Co. , 18 FMS HRC 1568, 1 5 7 4 (1 9 96). Substanti al evidenc e supp or ts the ALJ’s conclu si on that Black Beauty’s fai lure to follow the reg ulati on consti tuted more than
or dinary neg li gence and w as thus “unw arr antable.” III. The fac tual findings and conclu si ons of the Commi ssi on and the ALJ w ere supp or ted by sub stanti al evidenc e. Accordingly , Black Beauty’s petiti on for r eview i s DE NIED.