 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 18, 2012           Decided December 28, 2012

                       No. 11-1306

             BLACK BEAUTY COAL COMPANY,
                     PETITIONER

                             v.

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
              AND SECRETARY OF LABOR,
                   RESPONDENTS


        On Petition for Review of a Decision of the
    Federal Mine Safety and Health Review Commission


    Ralph Henry Moore argued the cause for the petitioner.
Patrick W. Dennison was on brief.

    Cheryl C. Blair-Kijewski, Attorney, United States
Department of Labor, argued the cause for the respondent. W.
Christian Schumann, Counsel, was on brief. John T. Sullivan,
Attorney, Federal Mine Safety and Health Review
Commission, entered an appearance.

   Before: HENDERSON and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge HENDERSON.
                                  2
     KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
Black Beauty Coal Company (Black Beauty) petitions for
review of an order of the Federal Mine Safety and Health
Review Commission (FMSHRC) adopting the findings of its
administrative law judge (ALJ) that: (1) Black Beauty
violated 30 C.F.R. § 75.400, which prohibits the accumulation
of coal and combustible materials in certain areas of a coal
mine; (2) the violation was an unwarrantable failure to
comply with [§ 75.400]; and (3) the violation constituted high
negligence. For the reasons set forth below, we deny the
petition.1

                                  I.

    Black Beauty operates the Air Quality No. 1 Mine
(Mine), an underground bituminous coal mine located near
Vincennes, Indiana. On February 26, 2009, Mine Safety and
Health Administration (MSHA) inspector Danny Franklin
(Franklin) entered the Mine to inspect its conveyor belts that
are used to carry coal out of the Mine. Randy Hammond
(Hammond), an inspector escort employed by Black Beauty,




1
  The respondents in this case are the Secretary of the United States
Department of Labor and FMSHRC, an “adjudicative agency that is
independent of the Department of Labor.” Letter from John T.
Sullivan, Attorney, FMSHRC to Mark J. Langer, Clerk, United
States Court of Appeals for the District of Columbia Circuit, Black
Beauty Coal Co. v. FMSHRC, No. 11-1306 (D.C. Cir. Apr. 13,
2012). The Secretary filed the respondent’s brief and FMSHRC
filed a letter stating that it responded to Black Beauty’s petition by
“stand[ing] on its decision issued in its adjudicative capacity.” Id.
                                3
accompanied Franklin.2 Shortly after entering the Mine,
Franklin noticed the “distinct odor of coal burning” and asked
three nearby miners about the smell. Transcript of ALJ Hr’g
(Feb. 11, 2011) (Tr.) 80-81 (Joint Appendix (JA) 39A). One
of the miners, Wayne Vogel (Vogel), told Franklin that he
first noticed the smell approximately thirty minutes earlier.
Vogel said he had investigated but had not found a cause so
he did not report the burning smell to management.

     Franklin then “follow[ed his] nose” and walked to a
location where the “three main north” belt dumps coal onto
the “one west B” belt. Tr. 83, 85, 159 (JA 40A, 59A). Black
Beauty had installed a skirt rubber between the two belts to
channel coal and prevent spills. Upon Franklin’s arrival at the
end of the one west B belt, also known as the “tail,” Franklin
found coal “packed in around th[e] tail roller” and trapped in
the guards surrounding the roller. Tr. 83 (JA 40A). Franklin
testified that the packed coal measured “two feet by five feet
by 19 inches” and was “packed into a point to where the
moving roller was—was turning in this compacted coal.” Tr.
85-86 (JA 40A-41A). Franklin believed the coal was “already
hot and burning as evidenced by the smell.” Tr. 94 (JA 43A).
Upon discovering the accumulation, Franklin asked
Hammond “what was going to be done with this.” Tr. 96-97
(JA 43A). When Hammond said that he would get someone to
fix the problem, Franklin said: “[W]ait a minute, and I said I
tell you what we’re going to do, I’m going to issue an order
and we’re going to shut the belt off.” Tr. 97 (JA 43A).



2
 Except where otherwise noted, the facts are from the testimony of
Franklin and Hammond taken during the February 15, 2011 hearing
before the ALJ.
                               4
     Hammond disagreed, testifying that the coal was not
burning. He believed that the burning smell came from the
skirt rubber or the conveyor belt, both of which were made of
fire-resistant rubber. He also testified that he did not see
smoke or flames. Hammond also testified—as did Franklin—
that neither their personal carbon monoxide detectors nor the
Mine’s carbon monoxide detectors indicated the presence of
combustion. While Franklin testified that the carbon
monoxide detectors activate at an “incipient” level of
combustion, he also explained that the detectors work only if
they are “in the right spot” and that he did not test the carbon
monoxide detector at the one west B tail “belt drive.” See Tr.
117, 119 (JA 48A-49A).

     Hammond and Franklin also disagreed on how long the
coal had been turning in the tail roller. Franklin’s notes stated
that the condition existed for approximately one hour but
Hammond testified that the condition existed for only one
minute or less before Franklin saw it and was caused by a
sudden tear in the skirt rubber. Franklin did not dispute that
the coal accumulation was caused by a tear in the skirt rubber
or that such a condition could arise suddenly but believed the
condition lasted for a longer time than Hammond estimated,
primarily because Vogel told him the burning smell began at
least thirty minutes before he arrived. Franklin and Hammond
also disagreed on whether they saw coal spilling when they
arrived at the belt; Hammond testified that he observed coal
spilling when he and Franklin approached the one west B belt
but Franklin testified that he did not see any spillage.

     Franklin issued a citation at approximately 9:40 a.m. on
the date of his inspection, concluding:

       Combustible material is allowed to accumulate
       around the 1 West “B” tail roller [in violation
                              5
       of 30 C.F.R. § 75.400]. The accumulations are
       in the form of loose and fine coal measuring
       approximately 2 by 5 feet by 19 inches in
       width. The tail roller was touching and running
       in coal 17 inches wide by 2 feet tall and 4 feet
       in length. When inspected there was a
       distinctive odor indicating there was material
       getting hot.

       With past history, the operator has engaged in
       aggravated conduct constituting more than
       ordinary negligence by continuing to violate
       this standard. This violation is an
       unwarrantable failure to comply with a
       mandatory standard.

JA 6A. Franklin also checked a box on the citation form
indicating that Black Beauty’s failure constituted “high
negligence.” JA 6A. On April 15, 2009, MSHA sent Black
Beauty a proposed penalty assessment, which Black Beauty
timely contested.

      On February 15, 2011, the ALJ held a hearing on the
Secretary’s petition for assessment of civil penalty based on
the above violation. Black Beauty Coal Co., 33 FMSHRC
1482 (2011) (ALJ). At the hearing, Black Beauty relied on the
testimony of James Villain (Villain), a belt shoveler who
cleaned the one west B tail on the day of Franklin’s inspection
approximately twenty-to-twenty-five minutes before Franklin
issued the citation. Villain testified that when he cleaned the
tail, “there wasn’t very much spillage and so I just took the
water hose that was there and washed it down.” Tr. 173 (JA
62A). Additionally, the skirt rubber was intact and the belt
was working and was not spilling any coal. Villain then left
the one west B tail and drove for approximately ten minutes
                                6
to the one west B head. When he arrived at the head, the belts
there were shut down. Villain returned to the tail where he
saw Franklin and Hammond, observed spilled coal and
noticed the torn skirt rubber.

     Crediting Franklin’s testimony over that of Hammond
and Villain, the ALJ found that the coal must have been
“turning in the rollers for some time” because “the odor of
burning coal had been evident for more than 30 minutes prior
to the arrival of Hammond and Franklin.” Black Beauty Coal
Co., 33 FMSHRC at 1487. The ALJ concluded that Black
Beauty had violated section 75.400, which provides that
“[c]oal dust, including float coal dust deposited on rock-
dusted surfaces, loose coal, and other combustible materials,
shall be cleaned up and not be permitted to accumulate in
active workings, or on diesel-powered and electric equipment
therein.” 30 C.F.R. § 75.400. She rated the violation
“significant and substantial” under 30 U.S.C. § 814(d) and
also concluded that the violation was an unwarrantable failure
to comply with section 75.400 and that the violation
constituted high negligence.3 See Black Beauty Coal Co., 33

3
  If a mine operator is found to have engaged in “high negligence,”
it is subject to a larger fine. See 30 C.F.R. § 100.3(d), (g).
Violations that are “significant and substantial” and constitute an
“unwarrantable failure” may result in the issuance of withdrawal
orders (requiring the immediate removal of miners from the
affected area of the mine):

    If the violation is found to be both “significant and
    substantial” and “caused by an unwarrantable failure of
    [the] operator to comply with [the] mandatory health or
    safety standards,” section 104(d)(1) requires a withdrawal
    order for a second mandatory standard violation caused by
    an “unwarrantable failure to comply” within 90 days of the
                                 7
FMSHRC at 1485-88. Accordingly, the ALJ assessed a
$70,000 civil penalty. Id. at 1488. Black Beauty timely
petitioned for review.

                                II.

    Black Beauty challenges the ALJ’s determination that
Black Beauty violated section 75.400, that the violation was
an unwarrantable failure, see 30 U.S.C. § 814(d)(1), and that
the violation constituted “high negligence,” see 30 C.F.R.
§ 100.3(d). We review the ALJ’s findings of fact for


   first. 30 U.S.C. § 814(d)(1). Section 104(d)(2) requires a
   second withdrawal order for “violations similar to those
   that resulted in the issuance of the [first] withdrawal
   order.” Id. § 814(d)(2). Section 104(e)(1) requires
   withdrawal for “any violation of a mandatory health or
   safety standard which could significantly and substantially
   contribute to the cause and effect of a coal or other mine
   safety or health hazard” within 90 days after the operator
   has been notified of “a pattern of violations of mandatory
   health or safety standards in the coal or other mine which
   are of such nature as could have significantly and
   substantially contributed to the cause and effect of coal or
   other     mine    health    or     safety   hazards.”     Id.
   § 814(e)(1). Once a section 104(e)(1) withdrawal order
   issues, section 104(e)(2) requires another such order for
   “any violation of a mandatory health or safety standard
   which could significantly and substantially contribute to
   the cause and effect of a coal or other mine health or safety
   hazard.” Id. § 814(e)(2).

Cyprus Emerald Res. Corp. v. Fed. Mine Safety & Health Review
Comm’n, 195 F.3d 42, 43 n.1 (D.C. Cir. 1999) (alterations in
original).
                               8
substantial evidence and review questions of law de novo. 30
U.S.C. § 816(a)(1); Sec’y of Labor v. Keystone Coal Mining
Corp., 151 F.3d 1096, 1099 (D.C. Cir. 1998).

                              A.

    30 C.F.R. § 75.400 provides:

       Coal dust, including float coal dust deposited
       on rock-dusted surfaces, loose coal, and other
       combustible materials, shall be cleaned up and
       not be permitted to accumulate in active
       workings,4 or on diesel-powered and electric
       equipment therein.

Section 75.400 prohibits accumulations but not mere
spillages. See Old Ben Coal Co. (Old Ben II), 2 FMSHRC
2806, 2808 (1980). No bright line differentiates the two terms.
See C. Gregory Ruffennach, Free Markets, Individual
Liberties And Safe Coal Mines: A Post-Sago Perspective, 111
W. Va. L. Rev. 75, 89 (2008). An accumulation exists if “a
reasonably prudent person, familiar with the mining industry
and the protective purpose of the standard, would have
recognized the hazardous condition that the regulation seeks
to prevent.” Utah Power & Light Co., 12 FMSHRC 965, 968
(1990), aff’d, Utah Power & Light Co. v. Sec’y of Labor, 951
F.2d 292 (10th Cir. 1991); see also Old Ben II, 2 FMSHRC at
2808 (“[T]hose masses of combustible materials which could
cause or propagate a fire or explosion are what Congress
intended to proscribe.”)

4
  “[A]ctive workings” is defined as “[a]ny place in a coal mine
where miners are normally required to work or travel.” 30 C.F.R.
§ 75.2.
                                 9
     Black Beauty argues that it did not violate section 75.400
because the coal turning in the tail roller was the result of a
sudden spill that occurred only briefly before Franklin
observed it. Because Black Beauty did not have a reasonable
amount of time to clean up the coal before Franklin issued the
citation, it argues that the coal did not accumulate within the
meaning of section 75.400. We disagree. FMSHRC has
expressly rejected the argument that “accumulations of
combustible materials may be tolerated for a ‘reasonable
time.’” Old Ben Coal Co. (Old Ben I), 1 FMSHRC 1954,
1957-58 (1979)5; see also Utah Power, 12 FMSHRC at 968
(section 75.400 “‘was directed at preventing accumulations in
the first instance, not at cleaning up the materials within a
reasonable period of time after they have accumulated’”)
(quoting Old Ben I, 1 FMSHRC at 1957).6



5
  Old Ben interpreted 30 U.S.C. § 864(a), a provision almost
identical to 30 C.F.R. § 75.400. Section 864(a) was an interim
safety standard in effect before the current regulation was
promulgated. See 30 U.S.C. § 861(a).
6
  Black Beauty relies on a footnote in Utah Power & Light Co. v.
Sec’y of Labor, 951 F.2d 292 (10th Cir. 1991), containing the
following dicta: “While everyone knows that loose coal is
generated by mining in a coal mine, the regulation plainly prohibits
permitting it to accumulate; hence it must be cleaned up with
reasonable promptness, with all convenient speed.” Id. at 295 n.11.
While some FMSHRC ALJ decisions have relied on the dicta to
find that section 75.400 can be violated only after a reasonable
time, “[a] decision of a[n ALJ] is not a precedent binding upon the
[FMSHRC].” 29 C.F.R. § 2700.69(d). FMSHRC has not followed
the Tenth Circuit’s twenty-year-old dicta nor has any court,
including the Tenth Circuit.
                              10
      Moreover, the ALJ found that coal had been turning in
the tail roller for a significant period. Black Beauty makes
several arguments contesting this finding. First, it contends
that the record establishes that the coal spilled because the
skirt rubber tore, the tear occurred just minutes before
Franklin saw it and the spill occurred almost immediately
after the tear. It notes that Franklin testified, in response to
Hammond’s statement that the accumulation was caused by
the skirt rubber tear: “I thought that that was very reasonable.
I didn’t doubt what he was saying. I was pleased to hear that
he had found the root cause.” Tr. 91 (JA 42A); see also Tr.
101 (JA 44A) (Franklin: “I think that it was a result from coal
spilling”). Franklin also conceded that coal could “gob up” in
the tail roller in as little as “30 seconds to—to a couple
minutes.” Tr. 90 (JA 42A). Black Beauty also notes that
Hammond believed the coal had accumulated for “a minute or
less” because he saw coal spilling at the time he arrived at the
tail and also observed wet coal on the ground. Tr. 162-63 (JA
60A). Hammond also testified that the skirt rubber could tear
“in an instant.” Tr. 162 (JA 60A).

     After considering these facts, however, the ALJ
explained that none of the evidence explained the smell of
burning coal that occurred at least thirty minutes before
Franklin’s arrival. Black Beauty Coal Co., 33 FMSHRC at
1487. Accordingly, the ALJ found “that Franklin presented a
scenario that was the most likely and well grounded in fact.”
Id. at 1488; see also Keystone Coal Mining Corp., 151 F.3d at
1107 (ALJ’s “determinations of credibility are entitled to
great deference”).

     Black Beauty argues before us that Franklin’s testimony
was inconsistent with Villain’s testimony that he (Villain) had
not noticed “very much spillage” when he “hosed . . . off” the
tail just minutes before Franklin arrived. Tr. 173 (JA 62A).
                                11
Black Beauty maintains that the ALJ erroneously credited
Franklin’s testimony over Villain’s because Franklin’s
testimony, relying as it did on Vogel’s statements, was
hearsay. But testimony based in part upon hearsay can be
credited over other testimony. See generally Hoska v. U.S.
Dep’t of the Army, 677 F.2d 131, 138-39 (D.C. Cir. 1982)
(“[U]nder certain circumstances, hearsay can constitute
substantial evidence[,]” such as “where declarants are
disinterested witnesses”); cf. Windsor Coal Co., 21 FMSHRC
997, 1002 (1999) (“[T]he Commission has permitted duration
to be established through the use of circumstantial
evidence.”). Moreover, the ALJ rejected Villain’s testimony
because he did not testify as to the existence vel non of a
burning odor7 nor did he testify whether there was coal
accumulated in the tail roller guard or turning in the roller.
See Black Beauty Coal Co., 33 FMSHRC at 1487-88.

     Black Beauty also argues that the ALJ’s duration finding
was unsupported by substantial evidence because the burning
smell Franklin described was unaccompanied by combustion.
Neither smoke nor flames accompanied the smell and neither
Franklin’s nor Hammond’s carbon monoxide detectors (which
activate at an incipient level of combustion) emitted any
warning. But Franklin did not testify to the contrary; he
further explained that the carbon monoxide detectors worked
only if they were “in the right spot” and that he did not test
the carbon monoxide detector at the belt drive. Tr. 119 (JA
49A). The lack of smoke, flames or a carbon monoxide
monitor warning does not mean that the ALJ’s duration
finding was unsupported by substantial evidence.
7
  Although Black Beauty claims that Villain testified that there was
“no smell . . . ten minutes before,” Reply Br. 4, Villain did not
testify one way or another regarding a smell.
                              12
     In sum, the ALJ’s conclusion that Black Beauty violated
section 75.400 is supported by substantial evidence.

                              B.

     The ALJ also concluded that Black Beauty’s violation of
section 75.400 constituted an unwarrantable failure. See 30
U.S.C. § 814(d)(1).

       The Commission has defined “unwarrantable
       failure” as “aggravated conduct, constituting
       more than ordinary negligence, by a mine
       operator in relation to a violation of the Act.”
       Emery Mining Corp. v. Secretary of Labor,
       MSHA, 9 F.M.S.H.R.C. 1997, 2004 (1987). It
       is characterized by “indifference,” “serious
       lack of reasonable care,” “reckless disregard,”
       or “intentional misconduct.” Cyprus Plateau
       Mining Corp. v. Secretary of Labor, MSHA, 16
       F.M.S.H.R.C. 1610, 1615 (1994) (citations
       omitted). If an operator reasonably, but
       erroneously, believes in good faith that the
       cited conduct is the safest method of
       compliance with the applicable regulations, its
       actions will not constitute aggravated conduct
       that exceeds ordinary negligence. Id.

Jim Walter Res., Inc. v. Sec'y of Labor, 103 F.3d 1020, 1025
(D.C. Cir. 1997).

     FMSHRC uses several factors to determine whether an
unwarrantable failure sanction is appropriate. The factors
include “the length of time that the violation has existed, the
extent of the violative condition, whether the operator has
been placed on notice that greater efforts were necessary for
compliance, the operator’s efforts in abating the violative
                               13
condition, whether the violation was obvious or posed a high
degree of danger, and the operator’s knowledge of the
existence of the violation.” IO Coal Co., 31 FMSHRC 1346,
1350-51 (2009). “While an administrative law judge may
determine, in his discretion, that some factors are not relevant,
or may determine that some factors are much less important
than other factors under the circumstances, all of the factors
must be taken into consideration and at least noted by the
judge.” Id. at 1351.

     The ALJ discussed the relevant factors and found several
supported by substantial evidence See Black Beauty Coal Co.,
33 FMSHRC at 1484. As we noted earlier, substantial
evidence supports the ALJ’s finding that the violation existed
for a significant period. Second, substantial evidence also
supports the ALJ’s finding that Black Beauty did not take
sufficient action to abate the violation. She stated that “[i]t is
clear . . . that the mine has failed to train its miners” based on
the fact that miner Vogel failed “to call or seek help when [he
could not] discover the source of a burning smell” and
because “[t]his mine [ ] had a number of prior violations for
accumulations, along with prior warnings for excessive
accumulations on the belt line.” Id. at 1488. In fact, Black
Beauty received 102 citations and orders for accumulations
violations for the Mine less than one year before this citation,
234 citations and orders for accumulations violations in the
previous two years and Franklin issued citations for three
other nearby accumulations at the Mine on the same day. Id.
at 1483, 1488.

     Black Beauty claims that the ALJ’s lack-of-training
finding is insufficient because there was no record evidence
of its miners’ training. But FMSHRC has in the past relied on
circumstantial evidence to find inadequate training. Rock of
Ages Corp., 20 FMSHRC 106, 122-23 (1998) (“[T]he judge
                              14
relied on the 26 percent misfire rate of pyrodex, and foreman
Kelty’s failure to engage in a further search for additional
misfires after Batchelder’s discovery of the four bags, as
strong circumstantial evidence of inadequate training . . . .”).
Moreover, as the ALJ discussed, Black Beauty presented no
evidence to refute Franklin’s opinion that the “little had been
done to address accumulations on the belt at this mine.” Black
Beauty Coal Co., 33 FMSHRC at 1488.

     Black Beauty further asserts that past violations cannot
be used to support an unwarrantable failure finding unless
they are similar to the cited violation. As FMSHRC has
explained, however, “[r]epeated similar violations may be
relevant to an unwarrantable failure determination to the
extent that they serve to put an operator on notice that greater
efforts are necessary for compliance with a standard.” San
Juan Coal Co., 29 FMSHRC 125, 131 (2007). And it “has
rejected the argument that only past violations involving the
same regulation and occurring in the same area within a
continuing time frame may properly be considered when
determining whether a violation is unwarrantable.” Id.
Instead, “even if a different area was cited, past violations
may, nonetheless, provide an operator with sufficient
awareness of an accumulation problem.” Id (footnote
omitted). The ALJ used Black Beauty’s past violations of
section 75.400, including warnings for excessive
accumulations on the belt line, Black Beauty Coal Co., 33
FMSHRC at 1488, to conclude that its violation constituted an
unwarrantable failure pursuant to 30 U.S.C. § 814(d)(1).

                              C.

    Finally, Black Beauty contends that the ALJ’s high
negligence finding was unsupported by substantial evidence.
High negligence exists if “[t]he operator knew or should have
                              15
known of the violative condition or practice, and there are no
mitigating circumstances.” 30 C.F.R. § 100.3(d) Table X.
Mitigating circumstances include, but are not limited to,
“actions taken by the operator to prevent or correct hazardous
conditions or practices.” Id. § 100.3(d). Black Beauty does
not detail any mitigating circumstances, leaving as the only
question whether Black Beauty “knew or should have known
of the violative condition or practice.” Id. & Table X.

     The ALJ’s high negligence finding appears to be based
on four facts: (1) Black Beauty had been cited for several past
accumulations violations (including warnings for belt line
accumulations); (2) the burning smell existed for a significant
time period; (3) Villain “should have . . . seen and noted” the
coal turning in the tail roller; and (4) Vogel and the other
miners did not alert management after noticing a burning
smell. See Black Beauty Coal Co., 33 FMSHRC at 1487–88.
Black Beauty makes the same argument here that it made to
contest the ALJ’s unwarrantable failure finding. And we
reject the argument for the same reasons we rejected it in
connection with the unwarrantable failure sanction.

     For the foregoing reasons, Black Beauty’s petition for
review is denied.

                                                   So ordered.
