762 F.3d 611
7th Cir.2014Background
- An inspector cited Black Beauty Coal Company under 30 C.F.R. § 77.1605(k) for lacking a berm along the outer bank of an elevated roadway (the bench) during a dragline move at Somerville Central Mine in Indiana.
- The bench serves as a road for mine vehicles; berms are dirt mounds intended to prevent vehicles from falling 50 feet to the pit below.
- During the dragline move, the berm was reduced from at least 5 feet to about 3 feet; a bulldozer and service trucks assisted the move and sometimes used the bench.
- An inspector later observed a segment with no berm for about two-tenths of a mile, and service trucks were within 18 feet of the edge.
- The ALJ, then the Commission on remand, found a berm was lacking and that the violation was significant and unwarrantable; the Commission ultimately denied Black Beauty’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the bench was a roadway during the dragline move | Black Beauty: bench ceased to be roadway while dragline moved. | Secretary: bench remained a roadway because service/haulage vehicles used it during the move. | Bench remained a roadway during the move; substantial evidence supports roadway status. |
| Whether a remnant berm sufficed to meet § 77.1605(k) | Remnant berm 16–17 inches met the height requirement. | No berm or insufficient berm existed for two-tenths of a mile. | Insufficient remnant berm; substantial evidence supports violation. |
| Whether the lack of a berm was a significant and substantial violation | Lack of berm posed a possible path to serious injury; hazard was reasonably likely. | Risk under evidence was not reasonably likely to occur or cause serious injury. | Violation is significant and substantial. |
| Whether the violation was unwarrantable (more than ordinary negligence) | Given prior berm citations and notice, the failure to cure was unwarrantable. | Past notices do not necessarily show unwarrantable conduct in the present case. | Violation was unwarrantable; Black Beauty on notice and failed to comply. |
Key Cases Cited
- Capitol Aggregates, Inc. v. Secretary of Labor, 4 FMSHRC 846 (1982) (roadway/bench as elevated roadway for machinery)
- El Paso Rock Quarries, Inc., 3 FMSHRC 35 (1981) (bench with haulage trucks as roadway)
- Buck Creek Coal Co., 52 F.3d 133 (7th Cir. 1995) (substantial evidence standard for witness testimony)
- Consolidation Coal Co., 22 FMSHRC 340 (2000) (unwarrantable violation factors (notice, extent, duration))
- New Warwick Mining Co., 18 FMSHRC 1568 (1996) (notice and reasonableness in unwarrantable determinations)
- IO Coal Company, Inc., 31 FMSHRC 1346 (2009) (factors for unwarrantable violations and notice)
- Mach Mining, LLC v. Secretary of Labor, 728 F.3d 643 (7th Cir. 2013) (standard for substantial evidence and agency findings)