Peabody Midwest Mining, LLC v. Fed. Mine Safety & Health Review Comm'n

• Decision Date: 12 August 2014
• Docket Number: No. 13–1659.,13–1659.
• Citation: 762 F.3d 611
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

762 F.3d 611

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.

No. 13–1659.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 10, 2013.

Decided Aug. 12, 2014.

Arthur M. Wolfson, Ralph H. Moore, II, Jackson Kelly PLLC, Pittsburgh, PA, for Petitioner.

Edward Waldman, W. Christian Schumann, Arlington, VA, Michael A. McCord, John T. Sullivan, Washington, DC, for Respondents.

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 Mining, LLC) for violating a federal regulation requiring a protective mound, or “berm,” along “the outer bank of elevated roadways.” See30 C.F.R. §§ 77.1605(k), 77.2(d). Black Beauty contested the citationbefore 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. See30 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. See30 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 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 contested the 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 bench was in poor condition caused by the dragline move, Black Beauty concluded, only slow travel was possible, which made the risk of injury or incident 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.

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. See30 U.S.C. § 823(d)(1).

II.

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...