                             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 Commis-
sion, 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 Commis-
sion 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 through-
out 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 de-
creased 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
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 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 reason-
able 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 contradic-
tion 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 con-
cluded 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 substan-
tial 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; conclu-
sions of law are reviewed de novo. Mach Mining, LLC, 728 F.3d
at 659.
    Black Beauty first maintains that the Commission incor-
rectly 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 bench before
dragline moves and after the move is complete, primarily for
hauling purposes. The parties agree that the bench is a road-
way during those routine mining operations. But the Commis-
sion also noted that while the dragline is being moved, which
occurs every 7 to 10 days, rubber-tired service vehicles con-
tinue 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 Com-
mission’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 testi-
mony that a remnant berm still was in place when the inspec-
tor 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 operations manager from Black 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 at-
tempted to cure the violation. Secretary of Labor v. Consolidation
Coal Co., 22 FMSHRC 340, 353 (2000).
    The ALJ found this violation to be unwarrantable, empha-
sizing 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. Accord-
ingly, Black Beauty’s petition for review is DENIED.
