In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1659

PEABODY MIDWEST MINING, LLC,

formerly doing business as BLACK

BEAUTY COAL COMPANY,

Petitioner,

v.

FEDERAL MINE SAFETY AND HEALTH

REVIEW COMMISSION, and

SECRETARY OF LABOR, Mine Safety

and Health Administration,

Respondents.

Petition for Review of an Order of the

Federal Mine Safety and Health Review Commission.

ARGUED DECEMBER 10, 2013 — DECIDED AUGUST 12, 2014

Before MANION, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. An inspector of the Mine Safety and

Health Administration cited Black Beauty Coal Company

(which since has changed its name to Peabody Midwest
2 No. 13-1659

Mining, LLC) for violating a federal regulation requiring a

protective mound, or “berm,” along “the outer bank of

elevated roadways.” See 30 C.F.R. §§ 77.1605(k), 77.2(d). Black

Beauty contested the citation before an Administrative Law

Judge of the Federal Mine Safety and Health Review Commission, but the ALJ upheld the citation, and Black Beauty sought

review by the Commission. The Commission remanded the

case to the ALJ, who again upheld the citation. The Commission denied further review.

Black Beauty now petitions for review of the ALJ’s order on

remand. See 30 U.S.C. § 816(a)(1). For the reasons described

below, we deny the petition.

I.

Black Beauty operates surface coal mines in Wyoming,

Illinois, and Indiana. The citation that is the subject of this

appeal was issued on September 11, 2007, at the Somerville

Central Mine in Gibson County, Indiana. An inspector had

been at Somerville five days earlier and issued two citations for

berms that were too low, one stretching four tenths of a mile

along a roadway descending into the mine pit and the other at

a dumping location. See 30 C.F.R. § 77.1605(l). 

A second inspector who knew about these earlier citations

arrived on September 11 to verify that the deficient berms had

been remedied. At the time Black Beauty was in the process of

moving a dragline, a massive piece of excavating equipment,

across a ledge cut into the side of the pit, called a “bench.” Each

bench is used as a road to move vehicles and workers throughout the mine. Berms, which are mounds of dirt and not cement

barriers or permanent structures, line each bench to prevent
No. 13-1659 3

wheeled vehicles from rolling over the edge and down the

steep drop to the next level, in this case 50 feet below. At its

widest point, the bench where the dragline was located was

200 feet across and 50 feet above the pit floor. The dragline in

this case, called “Peabody,” weighs over 5,000 tons; it moves

by taking 8-foot “steps” with its feet or shoes, traveling only

450 to 500 feet per hour. To facilitate the move a bulldozer

travels in front of the dragline and adjusts the height of the

berm by pushing dirt to or from it. The berm here was decreased to three feet tall from at least five feet tall before the

move to allow more room for the dragline to maneuver. The

bulldozer also smooths out the uneven surface on the bench

left by the dragline and rebuilds the berm after the dragline has

passed.

During the move the dragline broke down and required

servicing, for which Black Beauty employees drove service

trucks onto the bench. According to the inspector, the bench on

which the dragline was being moved did “not have a berm for

a distance of approximately 2/10 of a mile,” yet service trucks

had been driven onto that stretch and within 18 feet of the

edge. The inspector issued a citation under 30 C.F.R.

§ 77.1605(k) and concluded that the violation was significant

and substantial because the lack of a berm could result in a

permanently disabling injury.

Black Beauty contestedthe citation, asserting that the bench

did not constitute a “roadway” while the dragline was being

moved, since mine vehicles were not also traveling on it during

that time. Thus, the company argued a berm was not required.

The few vehicles on the bench during the move, Black Beauty

pressed, were there only to assist the move. And because the
4 No. 13-1659

bench was in poor condition caused by the dragline move,

Black Beauty concluded, only slow travel was possible, which

made the risk of injury orincident low. An operations manager

from Black Beauty added that, even if the bench still was a

roadway while the dragline was being moved, the 3-foot

“remnant berm” flanking it was at least as tall as the mid-axle

height of the largest vehicle traveling on the bench, and so,

according to the manager, a berm satisfying the regulation

remained in place.

An ALJ rejected Black Beauty’s arguments. She decided

that the presence of even one rubber-tired vehicle on the bench

rendered it a roadway and mandated a berm. The ALJ also

determined that the remnant berm remaining on the bench

during the dragline move was not tall enough, and thus Black

Beauty had violated § 77.1605(k). The lack of an adequate

berm, the ALJ continued, created a risk that a truck would veer

over the edge of the bench and down the steep incline. Were a

truck to take such a fall, the ALJ concluded, there is a reasonable likelihood that serious injury would result, and thus the

violation was significant and substantial. See Secretary of Labor

v. Mathies Coal Co., 6 FMSHRC 1, 3–4 (1984). The ALJ also

decided that, because Black Beauty was on notice that it

needed adequate berms based on the earlier citations, its

failure to provide a berm on this bench, even during the

dragline move, was “unwarrantable,” defined as “aggravated

conduct constituting more than ordinary negligence.”

See Emery Mining Corp. v. Secretary of Labor, 9 FMSHRC 1997,

2001 (1987); Buck Creek Coal, Inc. v. Fed. Mine Safety & Health

Admin., 52 F.3d 133, 136 (7th Cir. 1995). Black Beauty was

penalized $4,329.
No. 13-1659 5

Black Beauty then petitioned the Commission to review the

ALJ’s decision. The Commission agreed with the ALJ’s

conclusion that the bench was a roadway when the citation

was issued, though it disagreed with the ALJ’s reasoning that

the presence of a single rubber-tired vehicle on the bench

rendered it a roadway. During the move, the Commission

explained, a rubber-tired backhoe was used to assist and

remained on the bench; the dragline move, therefore, did not

alter the usual state of the bench as a roadway and a berm still

was required. The Commission also pointed out a contradiction between the ALJ’s order and the record: The ALJ had said

that the parties did not dispute that there was a remnant berm

on the bench, yet the Secretary had asserted that no berm was

present along a section of the bench. The Commission thus

vacated the ALJ’s decision and remanded the case for her to

clarify and explain the basis for her decision.

On remand the ALJ reviewed the hearing transcripts and

credited the inspector’s testimony that he saw no berm for two

tenths of a mile when he issued the citation. The ALJ also

reiterated her finding that a serious injury was reasonably

likely to occur because of the lack of a berm. She again concluded that the violation was significant and substantial and an

“unwarrantable failure” to follow the regulation, based on the

reasons given in her original decision. Black Beauty again

sought review, but this time the Commission denied the

request. The ALJ’s decision became final 40 days after it issued.

See 30 U.S.C. § 823(d)(1). 

II.
6 No. 13-1659

We review the Commission’s factual findings for substantial evidence. 30 U.S.C. § 816(a)(1); Mach Mining, LLC v.

Secretary of Labor, 728 F.3d 643, 659 (7th Cir. 2013). We will set

aside the factual findings of the ALJ,whose opinion became the

final decision, only if they are not supported by substantial

evidence. Zeigler Coal Co. v. Office of Workers’ Comp. Programs,

490 F.3d 609, 614 (7th Cir. 2007); Kennellis ENergies, Inc. v.

Hallmark, 333 F.3d 822, 826 (7th Cir. 2003). The ALJ’s credibility

determinations are reviewed for abuse of discretion; conclusions of law are reviewed de novo. Mach Mining, LLC, 728 F.3d

at 659.

Black Beauty first maintains that the Commission incorrectly concluded that the bench was a roadway while the

dragline was being moved and argues that the damage to the

bench caused by the dragline rendered it inoperable as a

roadway during that time. Instead, according to Black Beauty,

the bench became a “broad, rock-marked expanse of ground,”

unlike a roadway.

The term “roadway” is not defined in any statute or

regulation, but the Commission in its decisions has given

guidance for determining when to apply that label. For

example, in Secretary of Labor v. Capitol Aggregates, Inc.,

4 FMSHRC 846, 847 (1982), the Commission decided that an

elevated area, including a bench, was a roadway because it

“was used to drive a piece of machinery back and forth over

the structure.” The Commission noted that its conclusion was

“rooted in common usage” and “flows from a common sense

application of the standard to the facts.” Id. The Commission

also decided in Secretary of Labor v. El Paso Rock Quarries, Inc.,
No. 13-1659 7

3 FMSHRC 35, 36 (1981), that a bench on which haulage trucks

traveled was an elevated roadway. 

The Commission in this case reviewed the evidence

showing that Black Beauty’s vehicles travel on the benchbefore

dragline moves and after the move is complete, primarily for

hauling purposes. The parties agree that the bench is a roadway during those routine mining operations. But the Commission also noted that while the dragline is being moved, which

occurs every 7 to 10 days, rubber-tired service vehicles continue to use the bench to assist in the move. A backhoe follows

the dragline and carries its cable, and if the dragline needs to

be serviced or repaired during the move, service trucks travel

on the bench to and from the dragline. The Commission

concluded that the continuous use of the bench by service or

haulage trucks left unchanged the status of the bench as a

roadway even during the dragline move.

We conclude that substantial evidence supports the Commission’s determination. While at the mining site, the inspector

observed tire tracks on the bench and a truck parked near the

dragline. Two miners had driven the truck along the bench to

the dragline to complete repairs while the dragline was idle.

Although the truck may not have been traveling along the

bench while the dragline was moving, it was on the bench

when the dragline was stopped, which is when the inspector

arrived and noticed the lack of a berm. It may be that service

vehicles are not driven on the bench while the dragline actually

is moving, and therefore a berm would not be required. But the

evidence shows that in this case the dragline was down for

repairs, and service trucks had resumed driving on the bench,

using it as a roadway the same as during normal mining
8 No. 13-1659

operations. Additionally, even if the dragline does leave

behind it a surface on which vehicles cannot be driven, as Black

Beauty argues, the area in front of the dragline remains

smooth. That area of the bench, which is where the tire tracks

were found, sensibly can be considered a roadway.

Black Beauty next contends that the ALJ’s conclusion that

the company violated § 77.1605(k) is not supported by

substantial evidence because no witness testified that the bench

lacked a berm. Instead, Black Beauty insists, there was testimony that a remnant berm still was in place when the inspector arrived. That remnant, Black Beauty says, was higher than

the mid-axle height of the largest vehicle on the bench, and so,

the company concludes, it satisfied the requirement for a berm.

And if there was a violation, Black Beauty contends, it was not

significant and substantial because, the company posits, a mine

worker would not have been reasonably likely to suffer a

substantial injury because of the lack of a berm. Black Beauty

instead opines that a driver “may” have faced injury based on

evidence that only one truck had traveled close to the edge of

the bench, and any vehicles had to drive slowly, if driven at all,

because of the damage to the surface of the bench caused by

the dragline.

We find substantial evidence to credit the ALJ’s conclusion

that Black Beauty violated § 77.1605(k) by failing to maintain

a berm on two tenths of a mile of the bench. The ALJ recounted

the testimony of the inspector, who had 15 years experience in

mining and 18 as a mine inspector, that when he arrived at

Somerville Central Mine he observed a segment of the bench

where “there were no berms, zero berms.” Elaboration about

that observation is unnecessary. See Buck Creek Coal, 52 F.3d at
No. 13-1659 9

135 (accepting as substantial evidence opinion of single mine

inspector). Although an operationsmanager fromBlack Beauty

testified that a remnant berm of 16 or 17 inches remained while

the dragline was moved, the ALJ credited the inspector’s

testimony that no berm remained. We defer to that credibility

determination, and Black Beauty gives us no reason to doubt

it. Moreover, Black Beauty has not pointed to any regulation

that says a remnant berm of a specific height will suffice to

meet § 77.1605(k). In the absence of substantial evidence to the

contrary, we accept the findings of the ALJ.

We also find no reason to disturb the ALJ’s conclusion that

Black Beauty’s violation of § 77.1650(k) was significant and

substantial. A violation is significant and substantial if it could

lead to some discrete hazard, the hazard was reasonably likely

to result in injury, and the injury was reasonably likely to be

reasonably serious. Buck Creek Coal, 52 F.3d at 135; Mathies Coal

Co., 6 FMSHRC at 3–4. We already have concluded that a

violation occurred, and the parties do not dispute that the

violation led to a hazard—a vehicle could veer off the bench

and fall possibly 50 feet. Black Beauty argues that it is not

reasonably likely that a vehicle would have traveled off the

edge of the bench without the presence of a berm. But the

question is not whether it is likely that the hazard (a vehicle

plummeting over the edge) would have occurred; instead, the

ALJ had to determine only whether, if the hazard occurred

(regardless of the likelihood), it was reasonably likely that a

reasonably serious injury would result.

The ALJ determined that if a truck traveling on the bench

was to swerve over the edge and fall to the surface below, it

was at least reasonably likely that the occupants of that vehicle
10 No. 13-1659

would sustain a serious or potentially fatal injury. Common

sense tells us that the ALJ’s conclusion was correct. It is hard to

picture a scenario where a large service truck careens over the

edge of a roadway 50 feet above ground, rolls down a steep

incline to the ground below, and those inside the truck are not

significantly injured. Because a reasonably serious harm was at

least reasonably likely, we agree with the ALJ’s conclusion that

this violation was significant and substantial.

Last, Black Beauty contests that the ALJ’s finding that the

lack of a berm evinced an “unwarrantable failure”—more than

ordinary negligence—by Black Beauty to follow the regulation.

Black Beauty argues that the past citations it faced for berm

violations did not necessarily render it on notice of future

violations. In this case, Black Beauty concludes, the Secretary

proffered no evidence showing a similarity between the past

violations and the one now on appeal that would have put it

on notice that it had insufficient berms.

Several factors weigh into the ALJ’s analysis of whether a

violation was “unwarrantable,” including the length of time

the violation has existed, the extent of the violation, whether

the violator was on notice that greater efforts were necessary

for compliance, and whether the violator knew of and attempted to cure the violation. Secretary of Labor v. Consolidation

Coal Co., 22 FMSHRC 340, 353 (2000).

The ALJ found this violation to be unwarrantable, emphasizing the extent of the violation (anyone could access and

travel the road on the bench while the berm was removed) and

the notice that Black Beauty had before being cited for the

violation. Only five days earlier another inspector had cited
No. 13-1659 11

Black Beauty for inadequate berms at two locations along the

bench. The inspector testified that those citations put

Somerville Central Mine on “high notice”that it needed taller

berms. So not only did Black Beauty know that berms were

required, it also knew that its previous efforts to comply were

not enough. That means the violation should have been

obvious to Black Beauty. See Secretary of Labor v. IO Coal

Company, Inc., 31 FMSHRC 1346, 1356 (2009); Secretary of Labor

v. New Warwick Mining Co., 18 FMSHRC 1568, 1574 (1996).

Substantial evidence supports the ALJ’s conclusion that Black

Beauty’s failure to follow the regulation constituted more than

ordinary negligence and was thus “unwarrantable.”

III.

The factual findings and conclusions of the Commission

and the ALJ were supported by substantial evidence. Accordingly, Black Beauty’s petition for review is DENIED.