<DOC>
[DOCID: f:wva9837cd.wais]

 
CONSOLIDATION COAL COMPANY
WEVA 98-37
April 30, 2001

       FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
               1730  K  STREET  NW,  6TH  FLOOR
                   WASHINGTON,  D.C.   20006

                        April 30, 2001

SECRETARY OF LABOR,            :
  MINE SAFETY AND HEALTH       :
  ADMINISTRATION (MSHA)        :
                               :
          v.                   : Docket No. WEVA 98-37
                               :
                               :
CONSOLIDATION COAL COMPANY     :

BEFORE: Jordan, Chairman; Riley and Verheggen, Commissioners[1]

                            DECISION

BY:  Riley and Verheggen, Commissioners

     This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977 ("Mine Act" or "Act"),
30 U.S.C.  801 et seq. (1994).  At issue is Commission
Administrative Law Judge Jerold Feldman's decision
dismissing a citation issued on August 5, 1997 by the
Department of Labor's Mine Safety and Health
Administration ("MSHA") against Consolidation Coal
Company ("Consol") in connection with visible dust
generated during roof bolting at Consol's Blacksville No.
2 Mine, allegedly in violation of 30 C.F.R. 
72.630(d).[2]  22 FMSHRC 121 (Jan. 2000) (ALJ).  The
Commission granted the Secretary's petition for
discretionary review challenging the judge's decision.
For the reasons that follow, we affirm the judge's
decision.

                               I.

                Factual and Procedural Background

     Consol operates the Blacksville No. 2 mine, an
underground coal mine in Monongolia County, West
Virginia. 22 FMSHRC at 123; S. Ex. 11.  At the time MSHA
issued the citation at issue in these proceedings, Consol
used scroll auger drills on its roof bolting machines at
the mine.  22 FMSHRC at 123.  A scroll auger drill has a
spiral design that, as the drill penetrates the roof,
allows particles of rock that are displaced by the drill
to run out of the hole along the drill's spirals, rather
than plugging up the hole.  Id.; Tr. 90.  The roof
bolting machine, or "roof bolter," was located towards
the front of the continuous mining machine.  See S. Exs.
2, 3.  Individual miners stationed on either side of the
continuous mining machine operated the roof bolter.  Tr.
105, 110.

     The ventilation control systems used with the scroll
auger roof bolters were designed to divert the dust
generated by roof drilling into the end of a slider tube
that was the last extension segment of the ventilation
tubing.  22 FMSHRC at 125.  As the face in the section
was advanced, the slider tube was periodically extended
so that it remained 10 feet from the face.  Id.  The
ventilation was directed to divert the drill dust away
from the faces of the miners operating the roof bolters.
Id.

     Before the citation at issue in this proceeding was
issued, MSHA subjected Consol's drill dust control
measures for scroll auger roof bolters to some scrutiny.
See id. at 121.  On December 5, 1996, after receiving a
complaint pursuant to section 103(g) of the Mine Act, 30
U.S.C.  813(g),[3] MSHA issued a citation charging
Consol with a violation of section 72.630(d) based on an
inspector's observations of visible drill dust around the
position of the return side roof bolter in the 9-S
section of the Blacksville No. 2 Mine.  22 FMSHRC at 124.
Consol abated this citation by wrapping a ventilation
tube joint to keep air from escaping.  Id.  Sometime
later, in early 1997, Consol replaced the 45 horsepower
fans in its ventilation control system with 75 horsepower
fans, which at that time was the largest fan used for
dust ventilation control purposes.  Id.

     On April 8, 1997, Consol's corporate dust control
coordinator Craig Yanak and other Consol officials met
with MSHA officials, including MSHA Inspector William
Ponceroff, to discuss dust control.  Id.  During this
meeting, the MSHA officials expressed concern over
Consol's use of scroll augers.  Id.  Yanak testified that
he heard Ponceroff state "that his next venture was going
to be to rid Blacksville Two of the . . . scroll augers
by whatever means it was necessary for him to do so."
Tr. 1042.[4]  Later that month, on April 30, MSHA issued
a citation on the 9-S section of Blacksville No. 2 for a
violation of the respirable dust standard, 30 C.F.R. 
70.100(a).  22 FMSHRC at 124.  Sampling had revealed a
respirable dust concentration of 2.98 milligrams per
cubic meter of air ("mg/m3").  Id.  MSHA abated the
citation on June 17, 1997 after abatement respirable dust
samples revealed dust levels below the 2.0 mg/m3
standard.  Id.

     On June 4, 1997, Ponceroff issued a citation on the 
9-S section of Blacksville No. 2 alleging a violation of
section 72.630(d) based on his observations of drill dust
around the return side roof bolter, occupation code 048.
Id. at 125; S. Ex. 6.  Consol abated the citation by
installing belting around the frame of the miner and at
the drill head in order to divert dust away from the
drill operator.  22 FMSHRC at 125.  The judge noted,
however, that "Ponceroff's observations of excessive dust
due to inadequate ventilation control were not confirmed
by MSHA's respirable dust sample results taken on the 048
occupation during the period June 4 through June 6, 1997,
to abate [the citation] issued on April 30, 1997."  Id.
(emphasis in original).  The average of these abatement
samples was 1.4 mg/m3.  Id.

     On June 5, 1997, Consol dust control coordinator Yanak
went to the 9-S section to take spot respirable dust
concentration readings with a real time aerosol monitor
(RAM).  Id.  Because RAM readings can not distinguish
between dust particles and other particles, RAM readings
tend to be higher than dust samples taken with cassettes.
Id.  The RAM readings indicated respirable dust readings
of between 0.1 and 0.2 mg/m3, well below permissible
limits.  Id.

     On August 5, 1997, "[i]n response to continuing
complaints from union representatives about the miners'
exposure to drill dust," Ponceroff returned to the 9-S
section during the midnight shift.  Id.  Ponceroff
observed what he considered to be excessive dust around
the return side roof bolter, and concluded that "the dust
was in the roof bolters' breathing zones."  Id.  At this
time, the continuous miner had advanced deep into the
mining cycle, with the ventilation exhaust tubing
extending approximately 188 feet from where the exhaust
fan was located.  Id. at 126.  Both miners operating the
roof bolters testified that they believed they were
exposed to excessive dust.  Id.  Randy Murray, a union
safety committeeman who accompanied Ponceroff (id. at
125), testified that, although the section ventilation
was adequate, he believed that it "was not carrying the
dust away adequately from the miners."  Id. at 126.
Murray testified that Consol could not control the dust
"by ventilation . . . we would still be getting dust no
matter what they did [with ventilation]."  Tr. 209-10.

     As a result of his August 5 inspection, Ponceroff 
issued Citation No. 4540528, which he designated significant 
and substantial,[5] alleging a violation of section 72.630(d)
for ineffective dust control measures.  22 FMSHRC at 127.
The citation stated in part:  "Dust resulting from
drilling rock was observed in the 9-S section exposing
the return and intake roof bolters to inhalation hazards
from dust."  S. Ex. 5.

	Following the issuance of the citation, Consol added
a section of tubing to extend the main ventilation tubing
further inby the roof bolters.  22 FMSHRC at 127. Consol
also repaired the belt that had been placed around the
frame of the continuous miner to keep dust from traveling
from the intake side underneath the miner to the return
side.  Id.  In addition, Consol installed external water
sprays to keep the dust down.  Id.  During the day shift
on August 5, Ponceroff returned to the 9-S section and
determined that these remedial measures had not succeeded
in correcting the dust problems he observed the night
before.  Id. at 128.  He extended the abatement period
for the citation until August 12, 1997, to allow MSHA
technical support personnel to visit the mine and
evaluate the problem. Id.

     An MSHA technical support team visited the 9-S section 
on August 12 and 19.  Id.  Following the August 12 visit,
Consol replaced the continuous miner with a continuous
satellite miner.  Id.  Compared to the continuous miner
Consol previously used, the controls for the roof bolter
on the satellite miner are located farther back from the
drill hole, and the design of the satellite miner's frame
resulted in less dust being drawn under and dispersed
upward.  Id.  By the time the technical support team
visited the mine again on August 19, the satellite miner
was operating only 50 feet from the exhaust fan.  Id.
Although the team found no problems with dust control on
the section, it recommended that Consol replace its 18-
inch oval ventilation tubing with more efficient round
ventilation tubing with internal seals.  Id.  At this
time, Ponceroff terminated Citation No. 4540528.  22
FMSHRC at 128.  Sometime later, MSHA and Consol
informally agreed that over the next 18 months, the
company would retrofit its continuous miners with hollow
steel drills and dust collection systems when the miners
were brought to the surface for maintenance and repair.
Id.

     Consol contested the penalty MSHA proposed for Citation
No. 4540528 and a hearing was held.  Id. at 121-22.
First, the judge found that while section 72.630 allows
three methods of controlling drill dust,[6] whichever
method is used must be effective  even if not the most
efficient.  Id. at 122.  He went on to find that "the
goal of dust control is divert lighter respirable dust
particles away from miners even though visible dust may
continue to exist."  Id. at 129.  Noting that "[r]
espirable dust is comprised of extremely small particles
that are not visible in the atmosphere" (id.), the judge
concluded:

     [O]bservation of a dust cloud by an MSHA inspector,
     particularly at the site of a dust producing rock
     drilling activity, is not,  alone,  evidence  of 
     ineffective  dust  control  measures.  Rather, 
     ineffective dust control measures must be evidenced 
     by an operator's identifiable failure to follow the
     MSHA approved ventilation and dust control plan, 
     or, an identifiable defect in the dust control 
     equipment.

Id. at 122-23 (emphasis in original); see also id. at 130 
("The notion that visible dust observed in a cap light 
during the drilling process in an underground mine, alone, 
should provide a generic basis for allegations of violative 
conduct must be rejected.").

     The judge then stated, however, that "[s]ubjective
visible observations that serve as the sole basis for
alleging a [section] 72.360 violation are not always
reliable," and proceeded to evaluate the reliability of
Ponceroff's testimony.  Id. at 130.  The judge first
noted Ponceroff's observations of visible dust that led
him to issue a citation on April 30, 1997 similar to the
one at issue here, observations which MSHA samples of the
mine atmosphere did not confirm.  Id.  The judge then
stated that "the significance of visible observations of
drill dust is particularly suspect in this case, where
pressure was brought to bear on MSHA inspectors to force
[Consol] officials into replacing the ventilation
controls with dust collection systems."  Id.  In light of
these considerations, the judge discredited Ponceroff's
observations and concluded that they, alone, did not
establish a violation.  Id.  The judge also discredited
the observations of the miners who testified regarding
visible dust, noting that their "descriptions must be
viewed in the context of the [their] general 
dissatisfaction with ventilation as a means of
controlling drill dust, and their desire for state-of-
the-art dust collection."  Id.

     The judge then found that MSHA did not identify any
"missing, defective or otherwise ineffective means of
dust control" employed by Consol, this based on his
finding that none of the modifications implemented by
Consol to abate the violation lessened the level of dust
exposure.  Id. at 130-31.  He also noted that the
Secretary's vacating the S&S designation on the citation
was inconsistent with her assertion that the miners were
not adequately protected from drill dust exposure.  Id.
at 132.  The judge concluded that "the Secretary has
failed to demonstrate, by a preponderance of the
evidence, that [Consol's] ventilation control
configuration was defective, or that it otherwise failed
to adequately control dust from rock drilling on August
5, 1997," and he accordingly dismissed Citation No.
4540528.  Id.

                               II.

                           Disposition

     The Secretary argues "the judge erred by failing to
accept her interpretation of section 72.630(d) as
requiring that ventilation systems used to control drill
dust be effective and readily disperse and carry away the
dust from the drill operator and other miners in the area
even when the operator is following its ventilation and
[dust] control plan and the ventilation controls are not
effective."  PDR at 12.  The Secretary goes on to assert
that, based on the testimony of her witnesses, Consol's
dust control system violated section 72.630(d) because it
was visually ineffective.  Id. at 13-16.  She also
disputes the judge's reliance in discrediting Ponceroff
on the April citation for a violation of section
72.630(d) where contemporaneous samples revealed
acceptable levels of respirable dust in the area.  Id. at
17.  Section 72.630(d), the Secretary asserts, requires
that all drill dust be controlled, not just respirable
dust.  Id.  Pointing to the preamble to the final rule,
she also argues that section 72.630(d) was promulgated
because enforcement based solely on a permissible
exposure limit (i.e., 2.0 mg/m3 of respirable dust) would
not adequately protect miners from drill dust, where
extremely high exposure can occur in a very short time.
Id. at 17-18 (citing 59 Fed. Reg. at 8318).  The
Secretary challenges the judge's reliance on the S&S
designation on the citation being vacated as a grounds
for dismissing the citation.  Id. at 18-19.  Finally, the
Secretary argues that the judge's finding that Consol's
ventilation controls were not defective is not supported
by substantial evidence.  Id. at 19-20.

     Consol argues that the Commission should not consider 
the Secretary's deference argument because she did not raise
it before the judge.  Consol Br. at 11.  Moreover, Consol
argues, section 72.630(d) "is, by the Secretary's own
admission, clear and unambiguous," and that, therefore,
it is not open to interpretation by the Secretary.  Id.
Consol further argues to prove a violation of section
72.630(d), the Secretary must demonstrate that the drill
dust controls in the approved dust control plan are not
functioning properly.  Id. at 12-13.  Consol goes on to
assert that substantial evidence supports the judge's
finding that its ventilation controls were not defective.
Id. at 13-15.  Finally, Consol argues that the judge
properly rejected evidence of a violation based solely on
"subjective visual observations," and the judge's
rejection on credibility grounds of the testimony of
Inspector Ponceroff and the miners should not be
disturbed.  Id. at 15-16.

     The regulation at issue in this case is clear and
unambiguous.  It requires that when ventilation is used
to control dust generated by drilling rock, "the air
current shall be so directed that the dust is readily
dispersed and carried away from the drill operator or any
other miners in the area."  30 C.F.R.  72.630(d).  In
fact, both the Secretary and the judge agree that section
72.630(d) requires operators to control drill dust, and
that any such control must be effective.  22 FMSHRC at
122; PDR at 12.

     What is also clear from the preamble to the final
rulemaking promulgating section 72.630(d) is that the
standard is intended to prevent exposure to respirable
dust.  59 Fed. Reg. at 8322 ("All drillers and other
miners must be protected from the inhalation hazard of
respirable drill dust.").  As explained in the preamble,
however, the standard does not condition compliance upon
meeting a permissible exposure limit measured exclusively
through sampling.  Id. at 8318, 8323.  Instead, MSHA
announced that it will look at a number of factors to
test an operator's compliance with the standard,
including:

     -  determining whether "a dust control is missing,
     defective, or
     obviously visually ineffective," id. at 8325;

     -  "reviewing manufacturer's specifications or other
     pertinent
     data relative to the design and operation of the dust
     control" in
     situations "where it is not obvious that a control is
     effective," id
     .;

     -  measuring "air quantity or other measures set forth 
     in a mine's ventilation and methane and dust control 
     plan," id.; and

     -  "if practical, collecting samples to evaluate [the]
     effectiveness" of dust controls, id. at 8324.

     We thus disagree with the judge's statement that
"observation of a dust cloud by an MSHA inspector,
particularly at the site of a dust producing rock
drilling activity, is not, alone, evidence of ineffective
dust control measures."  22 FMSHRC at 122 (emphasis in
original).  We can envision circumstances in which
compliance can be determined solely on the basis of an
inspector's observations of a dust cloud, and the
preamble clearly contemplates such cases when it refers
to dust controls that are "obviously visually
ineffective."  59 Fed. Reg. at 8325.  The judge, however,
did not base his decision on his erroneous reading of
section 72.360.  Instead, he evaluated the testimony of
Ponceroff and the miners and rendered a finding on its
reliability.  Since he took this extra step, we find his
initial error harmless.

     This testimony served as the basis on which the 
Secretary alleged that Consol violated section 72.630(d).
The Secretary frames her initial argument as turning on
regulatory interpretation, but she in fact bases her
assertion that Consol violated section 72.630(d) on the
testimony of Ponceroff and the miners operating the roof
bolters that "the drill dust was not being readily
dispersed."  PDR at 13-14.  Indeed, this case does not
turn on regulatory interpretation at all, but instead on
the factual underpinnings of the Secretary's case.

     The judge concluded that neither the testimony of
Ponceroff nor the miners was credible.[7]  The Commission
must exercise a great degree of deference when
considering a judge's credibility determinations.  In re:
Contests of Respirable Dust Sample Alteration Citations,
17 FMSHRC 1819, 1878 (Nov. 1995), aff'd sub nom. Sec'y of
Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C.
Cir. 1998).  The Commission has noted that "the general
rule [is] that, absent exceptional circumstances,
appellate courts do not overturn findings based on
credibility resolutions."  Id. at 1881 n.80.  The sorts
of exceptional circumstances that would warrant
overturning a judge's credibility findings are where such
findings are self-contradictory, based on irrational
criteria, or contradict the evidence.  Id.  As the
Eleventh Circuit has explained, "[s]ince the ALJ has an
opportunity to hear the testimony and view the witnesses
he is ordinarily in the best position to make a
credibility determination."  Ona Corp. v. NLRB, 729 F.2d
713, 719 (11th Cir. 1984).  In light of this, the Ona
court concluded that "as a general rule courts are bound
by the credibility choices of the ALJ, even if they
'might have made different findings had the matter been
before [them] . . . de novo.'"  Id. at 719 (quoting Gulf
States Mfrs., Inc. v. NLRB, 579 F.2d 1298, 1329 (5th Cir.
1978)); cf. Brock v. Roadway Express, Inc., 481 U.S. 252,
266 (1987) ("Final assessments of the credibility of
supporting witnesses are appropriately reserved for the
administrative law judge, before whom an opportunity for
complete cross-examination of opposing witnesses is
provided.").  See also Metric Constructors, Inc., 6
FMSHRC 226, 232 (February 1984) (when judge's finding
rests on credibility determination, Commission will not
substitute its judgment for that of judge absent clear
indication of error), aff'd, 766 F.2d 469 (11th Cir.
1985).

     Here, no grounds exist upon which we would overturn 
the judge's findings on the credibility of Ponceroff and 
the miners.  To the contrary, his findings are supported 
by substantial evidence.[8]  Particularly relevant is the
judge's view of this case "in the context of the roof
bolter's general dissatisfaction with ventilation as a
means of controlling dust" (22 FMSHRC at 130), as well as
MSHA's apparent efforts to advance this agenda of the
miners, as when Ponceroff announced "that his next
venture was going to be to rid Blacksville Two of the . .
. scroll augers by whatever means it was necessary for
him to do so."  Tr. 1042.  We find any such statement as
this directed at Consol officials inappropriate insofar
as the ventilation system used by Consol to control drill
dust complied with section 72.630(d), as confirmed by the
MSHA technical support team that visited the 9-S section
on August 12 and 19, 1997 and found no problems with the
system.  22 FMSHRC at 128.

     We find unpersuasive the Secretary's argument that the
judge, in discrediting Ponceroff, should not have relied
on respirable dust samples that were at odds with the
inspector's issuance of a citation in April 1997 for a
violation of section 72.630(d) based on his visual
observations of dust.  PDR at 17; S. Br. at 19-21.  The
Secretary argues that "to establish a violation of
Section 72.630(d), [she] need not show that the
[permissible exposure limit] was exceeded."  S. Br. at
19.  She also points to language in the preamble which
states that "'the final rule is a work practice standard
that does not require sampling.'"  Id. at 20 (quoting 59
Fed. Reg. at 8322 (Secretary's emphasis)).  Clearly, the
preamble explicitly and for good reason does not
condition compliance with section 72.360(d) upon
sampling.  But this is not to say that the preamble
precludes the use of sampling to evaluate the
effectiveness of drill dust controls.  To the contrary,
it explicitly contemplates the use of such sampling.  59
Fed. Reg. at 8325 ("In those cases where it is not
obvious that a control is effective, MSHA inspectors will
continue to have the option . . . of sampling to
determine its effectiveness.").  Under MSHA's own rule,
sampling is thus relevant in evaluating the effectiveness
of a drill dust control.

     Here, though, the point is even narrower. Here, the
respirable dust sampling used to discredit Ponceroff was
not used to establish a violation of section 72.360(d).
Instead, the samples were taken to determine whether
Consol had successfully abated a violation of section
70.100(a)  samples taken in the same area and at the
same general time that Ponceroff  claimed to have
observed a violation of section 72.360(d).  We find the
samples relevant to the reliability of Ponceroff's
ability to visually evaluate Consol's drill dust
controls, and that the judge properly considered them.[9]

     The judge also reached the issue of whether MSHA
"identified a missing, defective or otherwise ineffective
means of dust control."  22 FMSHRC at 130.  He concluded
that MSHA made no such showing.  Id. at 131.  Given that
the Secretary's assignment of error on this point rests
upon further testimony of Ponceroff and miners with
respect to dust conditions in the 9-S section (S. Br. at
20), and that we have already affirmed the judge's
discrediting of this testimony, the Secretary's argument
is unavailing.

                              III.

                           Conclusion

     For the foregoing reasons, we affirm the judge's 
decision dismissing Citation No. 4540528.

                         James C. Riley, Commissioner

                         Theodore F. Verheggen, Commissioner

Chairman Jordan, dissenting:

     I agree with my colleagues that the judge erred in 
 holding  that compliance with 30   72.630(d) can never be 
 determined solely on the basis of an  inspector's 
 observations of dust. Slip op. at 7. However, I  disagree 
 with their conclusion that because the judge evaluated the 
 credibility of the inspector's testimony as to the extent 
 of  dust observed, his application of the wrong legal 
 standard  amounts to harmless error. Id. I believe remand 
 is necessary  to permit the judge to discuss the evidence 
 in the record  corroborating or refuting the inspector's 
 statements, and to  clarify the judge's views regarding 
 the inspector's credibility.

     On August 5, 1997, Inspector Ponceroff conducted an
inspection of the Blacksville Mine during the midnight
shift.  22 FMSHRC 121, 125 (Jan. 2000) (ALJ).  The
inspector observed drill dust "engulfing" two roof bolter
operators, and issued a citation for a violation of 30
C.F.R.  72.630(d), which requires that dust from
drilling rock be readily dispersed and carried away from
the drill operator and other miners.  22 FMSHRC at
125-127.

     The testimony of the inspector was the centerpiece of 
the Secretary's case alleging the presence of visible dust
near the miners.  Unfortunately, and likely due to the
judge's erroneous determination that an inspector's
observations of dust "alone" does not provide a basis for
establishing the violation, Id. at 130, the judge's
analysis of the inspector's testimony is somewhat opaque.
The judge never explicitly stated whether or not he found
him credible.  Id.  Referring to evidence that MSHA and
the miners wanted the operator to implement a different
dust collection system, the judge noted only that the
inspector's "observations and conclusions must be viewed
in context."  Id.  I am reluctant to equate this comment
with a credibility determination, particularly when the
judge does not mention or offers only a passing reference
to the evidence tending to corroborate the inspector's
testimony.

     For example, the inspector's observations regarding 
the extent of dust present are supported by contemporaneous
notes, Gov. Ex. 1 at 8, which even Consol characterizes
as "meticulous."  Consol Post-Hearing Br. at 6.  In
addition, the inspector's testimony that the drill dust
surrounded the roof bolters was confirmed by seven
miner witnesses.[10]  After acknowledging their "vivid
descriptions of dust exposure," 22 FMSHRC at 130, the
judge noted the miners' "dissatisfaction with
ventilation as a means of controlling dust."  Id.  I
believe my colleagues read too much into this statement
when they conclude that the judge discredited every
miner who testified.  Slip op. at 8.  Moreover, I think
we should be particularly cautious in ascribing
credibility determinations to the judge in this case
because his erroneous legal standard rendered the
inspector's testimony about visible dust irrelevant to
the judge's determination of whether a violation of
section 72.630(d) occurred.

     Affirming the present decision requires us to adopt 
a credibility determination from judicial comments that
would suggest the judge viewed the roof bolters as a
collective body whose veracity regarding visible dust was
inherently suspect, due to the dissatisfaction they had
expressed with the existing dust control procedures at
the mine. 22 FMSHRC at 130. I am particularly reluctant
to follow this course of action given the fact the record
contains comments by the judge which would indicate a
different view of the miners' testimony.  At one point
the judge stated, "I think I've said numerous times, I
thought that the testimony of the miners is very
compelling [as] to the dust exposure that they had."  Tr.
829.   At the end of the trial, the judge announced,
"the testimony by the roof bolters was compelling."  Tr.
1315 .

     Consequently, I believe this case should be remanded
so the judge can properly analyze the comprehensive
testimony, conduct a separate, careful analysis of the
testimony of each individual witness, and make explicit
credibility determinations.[11]

                            Mary Lu Jordan, Chairman

Distribution

Robert Vukas, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

**FOOTNOTES**

     [1] Commissioner Beatty recused himself in this matter 
and took no part in its consideration.

     [2] Section 72.630(d) states:

     Ventilation control.  To adequately control dust from
     drilling rock, the air current shall be so directed
     that the dust is readily dispersed and carried away 
     from the drill operator or any other miners in the 
     area.

30 C.F.R.  72.630(d).

     [3] Section 103(g) provides, in pertinent part:

     Whenever a representative of the miners or a miner 
     . . . has reasonable grounds to believe that a 
     violation of this Act or a mandatory health or 
     safety standard exists, or an imminent danger 
     exists, such miner or representative shall have
     a right to obtain an immediate inspection by 
     giving notice to the Secretary or his authorized 
     representative of such violation or danger . . . .

30 U.S.C.  813(g)(1).

     [4] Roy Pride, the Blacksville No. 2 Mine general
superintendent, testified "Ponceroff had made . . . 
statements that he was going to get the drill steels out of 
Blacksville Number 2 mine and that he was going to keep 
seeing visible dust until he got the spiral drill steels 
out of [the mine]."  Tr. 861, 973-74.

     [5] The S&S terminology is taken from section 104(d)(1)
of the Act, 30 U.S.C.  814(d)(1), which distinguishes as 
more serious any violation that "could significantly and 
substantially contribute to the cause and effect of a . . .
mine safety or health hazard."

     [6] 30 C.F.R.  72.630(a) provides: "Dust resulting 
from drilling in rock shall be controlled by use of 
permissible dust collectors, or by water, or water with a 
wetting agent, or by ventilation, or by any other method 
approved by the Secretary that is as effective in 
controlling dust."

     [7] The dissent argues that the "judge never explicitly
stated whether . . . he found [Ponceroff] credible," and 
is "particularly reluctant" to conclude that the judge 
discredited the testimony of the miner witnesses "due to the 
dissatisfaction they had expressed with the existing dust 
control procedures at the mine."  Slip op. at 11, 12. The 
dissent would remand this case to allow the judge to "make 
explicit credibility determinations."  Slip op. at 13. We do
not agree. Here, the judge made findings adequate to support 
his decision, and sufficiently explained his reasoning.  
Although he never explicitly states that he discredited the 
testimony of Ponceroff and the miners, he came as close as 
a judge can get to discrediting testimony without explicitly 
saying so, and we certainly find he implicitly discredited 
the testimony. Insofar as the judge's credibility findings 
here are implicit, we have found implied credibility 
determinations where judges have said far less. See Fort 
Scott Fertilizer--Cullor, Inc., 19 FMSHRC 1511, 1516 (Sept. 
1997) (recognizing implicit credibility finding of judge);
Sunny Ridge Mining Co., 19 FMSHRC 254, 261, 265, 267
(Feb. 1997) (same).

     [8] When reviewing an administrative law judge's factual
determinations, the Commission is bound by the terms of the 
Mine Act to apply the substantial evidence test.  30 U.S.C.
 823(d)(2)(A)(ii)(I).  "Substantial evidence" means "'such
relevant evidence as a reasonable mind might accept as 
adequate to support [the judge's] conclusion.'" Rochester & 
Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) 
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 
(1938)).  Under the substantial evidence test, the Commission 
may not "substitute a competing view of the facts for the view 
[an] ALJ reasonably reached."  Donovan ex rel. Chacon v.
Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983).

     [9] We also note that Ponceroff's observations were also
undercut by the RAM readings taken by Yanak. 22 FMSHRC at 125.

     [10] The two miners who were roof bolting when the 
inspector issued the citation under review described their 
working conditions as follows:

	"I always got dust from my bolter and the opposite
	bolter.  It would come under the machine and come up 
	in my face . . . . [Y]ou were exposed to the dust all 
	the time . . . It was on my teeth when I come [sic] 
	out of the mine. . . . I ate a lot of dust." Tr. 401, 
	409-411.

	"[The dust] came down and just swirled all around . . .
	[a]ll around you personally, yourself, the person that
	was drilling in that area."  Tr. 457.

	The miner who accompanied the inspector offered the
	following description:

	"[The] auger-type drill . . . allowed dust to come
	straight down and suspend in and around the bolters
	. . . 	[a]round their body.  On their face, their 
	arms, their legs."  Tr. 205, 208.

	When the inspector returned to the area during the 
	next 	day shift, he concluded that conditions had 
	not improved. 22 FMSHRC at 128.  The roof bolters 
	on duty during that shift provided the following 
	description of their environment:

	"[Dust] was mostly just right around my head and down
	around my body. . . .  The dust was coming from the 
	hole 	that I drilled and dropped straight down and 
	then I blew them up you know, coming up around my 
	body . . . . [M]y 	dust and Kenny's dust on the 
	other side would come my way because I had ventilation 
	up there and that could suck his dust across to me."  
	Tr. 531.

	"Everybody inhaled the drill dust when they drilled
	augers.  There's no way to get out of it . . . .  
	[W]e 	always ate dust while we was in the mine, 
	sir, bolting." Tr. 470, 475.

     [11] In Morgan v. Arch of Ill., 21 FMSHRC 1381 (Dec. 
1999), the Commission refused to affirm a credibility 
determination that ignored extensive record evidence tending 
to call the judge's finding into question.  21 FMSHRC 1381, 
1391.  We stated that "[a]lthough we will overturn a judge's
credibility determination only in rare circumstances, we will 
not rubberstamp them."  Id. at 1391-92.  We noted that before 
a judge credits any testimony, he must reconcile all record 
evidence that is inconsistent with that conclusion.  Id. at 
1391. The same holds true when a judge refuses to credit a 
witness' testimony.