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

 
KEYSTONE COAL MINING CORPORATION
December 6, 1995
PENN 91-451-R


           FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                    1730 K STREET N.W., 6TH FLOOR

                       WASHINGTON,  D.C.  20006


                           December 6, 1995

IN RE: CONTESTS OF RESPIRABLE        :  Master Docket No. 91-1
  DUST SAMPLE ALTERATION             :
  CITATIONS                          :
                                     :
KEYSTONE COAL MINING CORPORATION     :  Docket Nos. PENN 91-451-R
                                     :      through PENN 91-503-R
        v.                           :
                                     :  Docket Nos. PENN 91-1176-R 
SECRETARY OF LABOR,                  :      through PENN 91-1197-R
  MINE SAFETY AND HEALTH             :
  ADMINISTRATION (MSHA)              :
                                     :
SECRETARY OF LABOR,                  :  Docket Nos. PENN 91-1264
  MINE SAFETY AND HEALTH             :      through PENN 91-1266
  ADMINISTRATION (MSHA)              :
                                     :  and
        v.                           :
                                     :  Docket No. PENN 92-182
KEYSTONE COAL MINING CORPORATION     :  Docket No. PENN 92-183
                                     :
JIM WALTER RESOURCES,                :
  INC., et al.,                      :
           Intervenors               :
                                     :
UNITED MINE WORKERS                  :
  OF AMERICA (UMWA),                 :
           Representative of Miners  :


BEFORE:  Marks, Doyle, and Holen, Commissioners


BY: Marc Lincoln Marks, Commissioner


     I vigorously dissent.[1]

I.  Introduction

     The history of these so called dust cases may seem at first
to begin when the then Secretary of Labor, the Honorable Lynn
Martin, ordered citations issued against approximately one-third
of the entire coal industry (847 operators) for violating 30
C.F.R зз 70.209(b), 71.209(b); or 90.209(b) (collectively
"section 209(b)") by illegally altering the dust cassettes that
they submitted to the Pittsburgh Health Technology Center in
Pittsburgh, Pennsylvania.  Section 209(b) was promulgated to
verify and ensure that the respirable dust levels in the mines
subject to the standard were maintained at no greater than an
average concentration of 2.0 milligrams of respirable dust per
cubic meter of air or, under extraordinary conditions, maintained
at or below 1.0 milligram of respirable dust per cubic meter of
air.  However, I suggest that these cases did not begin when the
Honorable Lynn Martin ordered the instant citations issued, but
rather, these cases have their beginning prior to that date, when
the United States Government brought the Peabody Coal Company to
the bar of justice for, among other things, illegally altering
dust cassettes.   Interestingly enough, the altering, which the
Peabody Coal Company admitted to, consisted of, inter alia,
forcing air into the dust cassette and causing the filter to
display an abnormal white center or an AWC.  It was this very AWC
appearance that caused the dedicated employees of the United
States Government, sometime later, to become suspicious of the
thousands of AWCs that the cited operators were submitting to the
Pittsburgh Health Technology Center.

     There is, however, a dramatic difference between what
happened in the Peabody Coal Company case and what happened in
the dust cases before us now.  In 1987, the management of the
Peabody Coal Company had the decency and courage to admit their
wrongdoing:  they plead guilty and took their medicine (and a
pretty strong medicine it was) -- a fine of one half a million
dollars!  Unfortunately, that was not the case with the
defendants in these dust cases.  Rather, defendants in these
cases got together, hired counsel, and came up with a defense.
Although defendants and their counsel's imaginative defense and
arguments convinced the Administrative Law Judge, as reading his
decisions confirm, those decision lack legal significance.  Not
only was the ALJ obviously susceptible to the defendants'
arguments, but the ALJ enhanced them and committed fundamental
error in doing so!  As a result, the Administrative Law Judge's
decisions must be reversed.

     Although the body of this opinion will set out the ALJ's
errors in detail, I believe it is incumbent upon me to briefly
highlight his errors at this point.  The history of these dust
cases establishes that August 13, 1992 was a disastrous date for
the United States Government's case.   On that date the
Administrative Law Judge issued an order interpreting section
209(b), the section that all 847 operators in these dust cases
were charged with violating, resulting in the issuance of
approximately 5,000 citations against those operators.

     Section 209(b) states:

     The operators shall not open or tamper with the seal of
     any filter cassette or alter the weight of any filter
     cassette before or after it is used to fulfill the
     requirements of this part.

The judge interpreted section 209(b) to require the United States
Government to prove that the cited cassettes were intentionally
altered.  Taking on himself the mantle of "Noah Webster," the
Administrative Law Judge had this to say about the meaning of
section 209(b):

     If the weight of a filter cassette is "altered," the
     alteration can only be caused in one of two ways:
     either some person or persons actively caused it, or it
     resulted accidentally. The words of the standard in
     Section 209(b) according to their plain meaning refer
     to an action, proscribe conduct, include the concept of
     intention, and exclude an accidental occurrence.

14 FMSHRC 1510, 1513 (August 1992) (emphasis added).

     Obviously, if "altered" can have two meanings its meaning is
not "plain[!]"  Id.

     In spite of the law requiring an ALJ to give weight to the
Secretary's reasonable interpretation of section 209(b), the
judge did just the opposite and made the defendants' day!  The
Secretary of Labor, the Honorable Lynn Martin, interpreted
section 209(b) to require the United States Government to prove
that the weight of the cited cassettes was changed or altered
while in the operator's control and that the issue of whether the
section was violated in no way hinged on operator intent.  The
Administrative Law Judge rejected the Secretary's reasonable
interpretation of section 209(b).  The Administrative Law Judge
forced the United States Government to prove that the alteration
in the weight of a cited filter was caused by intentional and
deliberate operator misconduct.  In Re: Contest of Respirable
Dust Sample Alteration Citations, 14 FMSHRC 1510, 1517 (August
1992).  Once the Trial Judge made the aforementioned ruling,
(playing "Noah Webster" with the word "alter") he affirmed that
ruling on September 8, 1992, after the United States Government
requested he reconsider his August 13, 1992 ruling.  In Re:
Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC
1675, 1677 (September 1992).  To add insult to injury, the
Administrative Law Judge later placed a burden of proof on  the
Government that required it to exclude all possible, potential,
and reasonable nonintentional causes of AWCs.

     I now stop the reel and frame the still picture of what the
United States Government faced as these cases proceeded to trial.

     First the trial judge insisted that two trials take place.
The first trial he called the common-issues trial.  The second
trial he called the mine-specific trial.  In the first trial, the
Government knew that the judge would force them to prove that the
AWCs on the cited filters were caused by the operators'
intentional and deliberate misconduct and that the judge would
(as he did) carry over to the second trial his rulings in the
first trial on the evidence and the law.

     However, what the Government could not have anticipated was
that the judge was going to force the Government -- if  you can
believe this -- to exclude all potential, possible, and
reasonable nonintentional causes of AWCs appearances.  Even in
criminal cases, where the burden of proof is beyond a reasonable
doubt, the case law is well settled that the prosecution does not
have to exclude every other reasonable hypothesis to convict the
charged party of violating the cited law.  Likewise, in a civil
case, the party carrying the burden of proof does not have to
exclude every other potential, possible, and reasonable cause of
the acts charged.  However, as the first case went to trial, and
as the second case proceeded, that is exactly what this trial
judge forced the Government to do.   As I will expand on in depth
in section V.A. supra, the judge again and again and again and
again stated that there were too many other possible explanations
for the appearance of the AWCs and, consequently, the Government
failed to prove that the ONLY reason for the appearance of the
AWC was the intentional and deliberate operator misconduct.

     Not only did the trial judge place a burden of proof on the
Government that was impossible to shoulder, but, as both of his
opinions indicate, he rejected the testimony of each and every
expert witness that the Government put forth and turned a blind
eye towards the mountain of extraordinary statistical evidence
presented by the Government.

     Under these circumstances, could there be any doubt that the
judge would hold, as he did, in favor of the defendants in both
of these cases.

II.  The Judge Erred in Failing to Give Weight to the Secretary's
     Interpretation of Section 209(b)

     A.  Legislative Background of Section 209(b)

     The defendants in these cases were cited for violating
section 209(b), which provides:

          The operator shall not open or tamper with the
     seal of any filter cassette or alter the weight of any
     filter cassette before or after it is used to fulfill
     the requirements of this part.

Section 209(b) (emphasis added).  Section 209(b) is an important
part of a regulatory scheme designed to protect miners from 
silicosis.  Silicosis has been recognized for a long time as a
disease associated with coal miners.  The inhalation of
silica-bearing dust has been causally linked to the disease.  See
Coal Mine Health and Safety: Hearings Before the Subcommittee on
Labor of the Committee on Labor and Public Welfare, United States
Senate, 91st Cong., 1st Sess., 764 (1969); Coal Mine Health and
Safety: Hearings Before the Committee on Education and Labor,
House of Representative, 91st Cong., 1st Sess., 119, 309, 310,
337 (1969).  Recognizing this hazard, section 102(a)(1) of the
Senate bill which became the 1969 Coal Act, and which was carried
over into the Mine Act of 1977, required that the respirable dust
standard be reduced when coal dust contains more than 5 percent
quartz and that the applicable dust standard "be determined in
accordance with a formula prescribed by the Surgeon General."[2]
The Senate Committee report stated, "Since high quartz content in
coal dust . . . presents a greater health hazard, the Surgeon
General is directed to prescribe the formula to be used in
arriving at a dust standard for dust containing more than 5
percent quartz which offers comparable protection to the
statutory standards for dust containing 5 percent or less
quartz."  S. Rep. No. 410, 91st Cong., 1st Sess. 46 (1969)
reprinted in Senate Subcommittee on Labor, Committee on Labor and
Public Welfare, 94th Cong., 1st. Sess., Part I Legislative
History of the Federal Coal Mine Health and Safety Act of 1969,
at 172 (1975).  It was in complying with this requirement of
section 205 of the 1969 Coal Act, that the Secretary of Health,
Education, and Welfare prescribed, and the Secretary of the
Interior adopted, the formula set forth in 30 C.F.R. з 70.101.
The formula was developed by the National Institute for
Occupational Safety and Health and was based upon Public Health
Service studies evaluating the effects of free silica on
respiratory health.  See 36 Fed. Reg. 4981 (March 16, 1971); U.S.
Steel Mining Co. Inc., 5 FMSHRC 46, 50-51 (January 1983)(ALJ).

     Silicosis is a pulmonary disease caused by silica-bearing
(quartz) dust retained by the lungs following respiration.[3]
The retained dust causes a scarring process, known as fibrosis.
If the fibrosis occurs in the most distal portions of the lungs,
the alveoli, nodes of scar tissue develop which compromise the
air exchange capacity of the lungs.  Damage caused by the
scarring is irreversible and there is no known treatment for the
disease!  Silicosis can develop into a life-threatening
respiratory condition known as progressive massive fibrosis.
(Such a condition can develop also as the result of coal workers'
pneumoconiosis.)  Progressive massive fibrosis can develop long
after an individual's exposure to quartz-bearing dust has ceased.
The more silica dust an individual is exposed to, the greater the
probability of developing silicosis.  Based upon the data
presently available, however, it is impossible to quantify the
physiological effect of infrequent, low-level exposures to
silica-bearing dust.  However, it is known that there is, in any
event, a cumulative dose-response effect from repeated exposures.
An increased frequency of exposure and/or an increased
concentration of dust increases the risk of developing silicosis.
U.S. Mining Co., Inc., 8 FMSHRC 1274 (September 1986).

     When Congress delegated to the Secretary of Health,
Education, and Welfare the authority to prescribe the 
applicable limit of respirable dust when the quartz content
exceeds 5 percent, it intended that exposure level to be 
the maximum level allowed to achieve its stated goal of
preventing disabling respiratory disease.  Section 201(b), 30
U.S.C. з 841(b).  Further, as stated by the Commission in
Consolidation Coal Co., 8 FMSHRC 890 (June 1986), "Congress
clearly intended the full use of the panoply of the Act's
enforcement mechanisms to effectuate this Congressional goal 
. . . ."  Consolidation Coal Co., 8 FMSHRC at 897.  Section 209(b)
plays a critical role in effectuating this Congressional goal by
seeking to ensure that dust samples accurately reflect the
respirable dust levels in the mines in order to protect miners
from silicosis to the maximum extent possible under the law.

     B.  The Secretary's interpretation of section 209(b)

     Against this background of Congress' clear intent to prevent
respirable diseases induced by silica-bearing dust, it is
critical that section 209(b) be interpreted to protect
miners from silicosis to the maximum extent possible under
the law.  According to the Secretary's interpretation of
this provision, an operator violates section 209(b) when the
weight of a cited filter is altered while the filter is in
the operator's control.  See Secretary of Labor's Motion for
Reconsideration and for Clarification ("Motion for
Reconsideration") at 2-3; see also Secretary of Labor's
Statement in Opposition to Contestants' Motion for
Consolidation and Trial at 2-4; Secretary of Labor's
Statement of the Issues and Trial Proposal at 2-5; see
generally In Re: Contest of Respirable Dust Sample
Alteration Citations, 14 FMSHRC 1510, 1513 (August 1992); In
Re: Contest of Respirable Dust Sample Alteration Citations,
14 FMSHRC 1675 (September 1992).  The Senate's committee
report on the Mine Act of 1977 states that because the
Secretary "is charged with responsibility for implementing
this Act, it is the intention of the Committee, consistent
with generally accepted precedent, that the Secretary's
interpretations of the law and regulations shall be given
weight by both the Commission and the courts."  S. Rep.No.
181, 95th Cong., 1st Sess. 49 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 637 (1978) (emphasis
added).  It is, of course, well-settled that an agency's
interpretation of its own regulation is "of controlling
weight unless it is plainly erroneous or inconsistent with
the regulation."  Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 414 (1945).  Indeed, where the Secretary presents
a plausible reading of his own regulation, an appellate body
must give weight to the Secretary's interpretation.  The
Secretary is emphatically due this respect when he
interprets his own regulations.  United States v. Larionoff,
431 U.S. 864, 872-73 (1977) (if an agency's interpretation
is not plainly inconsistent with the wording of the
regulation, it is due weight even though the regulation may
contain "a number of ambiguities"); Udall v. Tallman, 380
U.S. 1, 4 (1965) ("The Secretary's interpretation may not be
the only one permitted by the language of the orders, but it
is quite clearly a reasonable interpretation; courts must
therefore respect it."); Federal Labor Relations Authority
v. United States Department of Treasury, 884 F.2d 1446, 1454
(D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990);
Hispanic Information & Telecommunications Network, Inc. v.
FCC, 865 F.2d 1289, 1296 (D.C. Cir. 1989) ("An agency's
interpretation of its own regulations will be accepted
unless it is plainly wrong.").  When faced with a problem of
regulatory construction, the Commission gives great weight
to the Secretary's reasonable interpretation.

     Prior to the judge's decision interpreting section 209(b),
the Secretary asserted that section 209(b) is clear on its
face.  Motion for Reconsideration at 3.  Alternatively, the
Secretary asserted that in the event the language of section
209(b) is ambiguous his interpretation is reasonable and,
thus, entitled to deference.  Id. at 3-5.  According to the
Secretary, the terms "open", "tamper", and "alter" should be
read in the "context in which they appear, rather than
interchangeably."  Id. at 2.  According to the Secretary,
the term "alter" means change.  Consequently, a violation of
section 209(b) "occurs whenever there is a change, or
alteration, of the weight of the dust filter.  The fact of
the violation in no way hinges on operator intent."  Id. at
2-3 (emphasis added).  The Secretary contended that
questions of intentional or deliberate conduct are relevant
only in the penalty assessment phase and are not relevant to
the question of whether the standard has been violated.
Secretary of Labor's Statement in Opposition to Contestants'
Motion for Consolidation and Trial at 4.

     The terms "alter" and "tamper" can not be read as synonyms.
Elementary principles of regulatory construction dictate
that one part of a regulation should not be construed as to
make another part superfluous or redundant and, thus,
"emasculate" that part.  See United States v. Menasche, 348
U.S. 528, 538-39 (1955); Nat'l Wildlife Federation v. Sec.
of Interior, 839 F.2d 694, 752 (D.C. Cir. 1988); Motor &
Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, 1108 (D.C.
Cir. 1979), cert. denied, 446 U.S. 952 (1980).  The
Secretary interprets "tamper" to connote intentional or
deliberate conduct and "alter" to connote mere change,
unoccasioned by intentional or deliberate conduct.  Motion
for Reconsideration at 2-3.

     To sustain the Secretary's interpretation of section 209(b),
and of the terms "alter" and "tamper," the Commission need
not find that the Secretary's construction is the only
reasonable one, or even that it is the interpretation it
would have reached.  Unemployment Comp. Comm'n v. Aragon,
329 U.S. 143, 153 (1946).  See also, e.g., Gray v. Powell,
314 U.S. 402, 412 (1941); Universal Battery Co. v. United
States, 281 U.S. 580, 583 (1929).  Rather, to have his
interpretation sustained, the Secretary need only present a
plausible, reasonable interpretation that is not plainly
inconsistent with the wording of section 209(b).  The
Secretary's interpretation is reasonable and consistent with
the language of section 209(b).  Consequently, because this
Commission accords weight to such interpretations of the
Mine Act and the regulations promulgated under it, the
Secretary's interpretation of section 209(b) must be
sustained!


     C.  Judge Broderick's orders and decisions regarding the
     interpretation of section 209(b)

     Judge Broderick[4] rejected the Secretary's reasonable
interpretation of section 209(b) twice.  In Re: Contest of
Respirable Dust Sample Alteration Citations, 14 FMSHRC 1510
(August 1992); In Re: Contest of Respirable Dust Sample
Alteration Citations, 14 FMSHRC 1675 (September 1992).  The
judge, interpreting "alter" and "tamper" as synonymous
terms, emasculated the term "alter" and, thus, violated a
basic tenet of statutory construction.  In doing this, judge
Broderick erred.  This error infected every aspect of the
trial and the decisions that followed.

     In framing the issue for the common issues trials, Judge
Broderick rejected the Secretary's interpretation and stated
the following:

          The basic common issue for the trial of which
     these cases are consolidated and which will be resolved
     in the trial is:  Whether an abnormal white center
     (AWC) on a cited filter cassette establishes that the
     operator intentionally altered the weight of the
     filter?

14  FMSHRC 1510, 1517  (August 1992).  In ruling on the
Secretary's motion for clarification, Judge Broderick again
rejected the Secretary's interpretation and stated the following:

          The issue is whether an AWC on a cited filter
          cassette establishes that the operator
          intentionally altered the weight of  the
          filter.

14 FMSHRC 1675, 1677 (September 1992) (emphasis added).

     At the outset of his decision on common issues, Judge
Broderick set forth the following issues:

          1.  What is an AWC?

          2.  Does an AWC on a cited filter establish that the
          mine operator intentionally
     altered the weight of the filter?

          The Secretary has the burden of  proof on these
     issues.  The burden requires that the Secretary show by
     a preponderance of  evidence that (1) the term "AWC"
     has a coherent meaning and was consistently applied;
     (2) the cited AWCs can only have resulted from
     intentional acts; (3) the AWCs resulted in weight
     losses in the cited filters.

15 FMSHRC 1456, 1463-64 (July 1993) (footnote omitted) (emphasis
added).  In determining whether the Secretary's witness, Mr.
Thaxton's classification of citeable filters -- those exhibiting
Abnormal White Centers ("AWCs") -- was coherent and consistent,
Judge Broderick noted the following:

          The basic issue to be determined in the common
     issues trial is whether an AWC on a cited filter
     establishes per se that the mine operator intentionally
     altered the weight of the filter.

Id. at 1464 (emphasis added).  In setting forth his conclusions
of law, Judge Broderick concluded that the Secretary failed to
prove that an "AWC on a cited filter establishes that the mine
operator intentionally altered the weight of the filter."  Id. at
1521 (emphasis added).   Judge Broderick also concluded that the
Secretary failed to prove that "deliberate conduct on the part of
the cited mine operators is the only reasonable explanation for
the cited AWCs."  Id. (emphasis added).

      Judge Broderick concluded that:

     the record shows too many other potential causes for the
     dust dislodgement patterns on the cited AWCs for me to
     accept the Secretary's circumstantial evidence as sufficient
     to carry his burden of proof  that the mine operators
     intentionally altered the weight on the cited filters.

Id. at 1522 (emphasis added).

     In forecasting the issue for the mine-specific trial, Judge
Broderick stated the issue would be as follows:

     [W]hether the weight of the filters cited as AWCs from the
     Urling No. 1 Mine was intentionally altered by the mine 
     operator, considering the findings made as a result of the
     common issues trial, and the evidence which may be introduced
     concerning the dust sampling and handling practices at the mine.

     Id. (emphasis added).  In the mine-specific decision, Judge
Broderick further stated that, "[o]n the basis of all the
evidence introduced in the common issues trial[,]" the
Secretary had failed to prove in the common-issues trial
that an AWC on a cited filter "establishes" that the cited
operator "intentionally altered the weight of the filter[.]"
Keystone Coal Mining Corporation, 16 FMSHRC 857, 861 (April
1994) (emphasis added).  Judge Broderick further stated that
the Secretary had failed to prove in the common-issues trial
that "deliberate conduct on the part of the cited mine
operators is the only reasonable explanation for the cited
AWCs."  Id.  In discussing his ultimate findings and
conclusions of law, Judge Broderick held that the same
evidentiary burden that was applicable in the common issues
trial was applicable in the Keystone mine-specific case:
the Secretary must prove "that the 75 cited Urling filters
resulted from intentional tampering."  Id. at 895 (emphasis
added).

     Quite clearly, the judge rejected the Secretary's reasonable
interpretation of section 209(b) and substituted his own
interpretation, which he subsequently applied through the
two trials and in his decisions.

     D.  Fundamental Error

     In the interest of justice and upon consideration of public
policy, I conclude that the judge committed fundamental
error in rejecting the Secretary's reasonable interpretation
of section 209(b).  The judge erred in his most important
determination in this case:  ruling on the Secretary's
interpretation of section 209(b).  The majority's failure to
consider the judge's rejection of the Secretary's reasonable
interpretation of section 209(b) as fundamental error has
resulted in an unjust resolution of these proceedings.

     As noted above in section II.A., in enacting the Coal Act of
1969 and the Mine Act of 1977, Congress clearly intended to
prevent respirable diseases induced by silica-bearing dust.
Consequently, it was critical that the Secretary's
reasonable interpretation of section 209(b) be sustained in
order to protect miners from silicosis to the maximum extent
possible under the law.  Although the Secretary did not
appeal the judge's rejection of his reasonable
interpretation of section 209(b) to the Commission, in the
interest of justice and based on considerations of public
policy, the judge's interpretation of section 209(b) must be
reviewed and ultimately set aside and the Secretary's
interpretation sustained in order to effectuate the purposes
of the Coal Act of 1969, as amended by the Mine Act of 1977.

     There is "no rigid and undeviating judicially declared
practice under which courts of review invariably and under
all circumstances decline to consider all questions which
have not previously been specifically urged."  Nuelsen v.
Sorensen, 293 F.2d 454, 462 (9th Cir. 1961) ("Nuelsen"), see
also McDougall v. Dunn, 468 F.2d 468, 476 (4th Cir. 1972)
("McDougall").  And for good reason!  Indeed, both the
Federal Rules of Appellate Procedure and the Commission's
own procedural rules require the "just" determination of all
cases.  28 U.S.C.A. з 2106 and 29 C.F.R. 2700.1(c) (emphasis
added).  Specifically, the Nuelsen court stated that there
could not be an inflexible practice whereby appellate bodies
decline to consider any and all questions which had not been
specifically raised to the appellate body without doing
violence to the statutes which gave them appellate power to
modify, reverse or remand decisions "as may be just under
the circumstances."  Nuelsen, 293 F.2d at 462,  quoting 28
U.S.C.A. з 2106.  In McDougall the court stated the
following:

     Appellate Courts are not . . . powerless to correct
     errors in the trial, even if not raised by appeal,
     "where injustice might otherwise result * * *.  Rules
     of practice are devised to promote justice, not to
     defeat them. . . .   Orderly rules of procedure do not
     require sacrifice of the rules of fundamental justice."
     Washington Gas Light Co. v. Virginia Electric & Pow.
     Co. (4th Cir. 1971) 438 F.2d 248, 250-251, quoting from
     Hormel v. Helvering (1941) 312 U.S. 552 . . . .  See
     also Dudley v. Inland Mutual Insurance Co. (4th Cir.
     1962) 299 F.2d 637, 641-642.  Indeed, "Exceptional case
     or particular circumstances may prompt a reviewing
     court, where injustice might otherwise result or where
     public policy requires, to consider questions neither
     pressed nor passed upon below."  Nuelson . . . at 462;
     Washington Gas Light Co. v. Virginia Electric & Pow.
     Co., supra.

McDougall v. Dunn, 468 F.2d at 476.  The Federal Rules of
Appellate Procedure have been incorporated by the Commission's
regulations for the purpose of guiding the Commission on matters
of procedure.  30 C.F.R. 2700.1(b).  Moreover, just as the
Federal Rules of Appellate Procedure give Federal appellate
courts the power to take such actions "as may be just under the
circumstances[,]"  28 U.S.C.A. з 2106, the Commission's own
regulations instruct the Commission to construe its rules to
"secure the just . . . determination of all proceedings[.]"  30
C.F.R. 2700.1(c) (emphasis added).

     Reading 30 C.F.R. 2700.1(b) & (c) and 28 U.S.C.A. з 2106
together, I conclude that the Commission is empowered, indeed
obligated, to review the judge's rejection of the Secretary's
reasonable interpretation of section 209(b).  In agreement with
the rationale of the Ninth Circuit Court of Appeals in Nuelsen
and the Fourth Circuit Court of Appeals in McDougall, I conclude
that in light of 30 C.F.R. 2700.1(c) our procedural rules can not
be read to prevent review of this issue without doing violence to
the mandate of our rules to "secure the just . . . determination
of all proceedings[.]"  30 C.F.R. 2700.1(c).  Failure to address
this issue has resulted in an unjust decision being rendered by
the majority.  This is contrary to the dictates of 30 C.F.R.
2700.1(b) & (c) and 28 U.S.C.A. з 2106.  The judge's rejection of
the Secretary's reasonable interpretation of section 209(b)
presents exceptional circumstances and, as such, the Commission
is required to consider this issue.  Indeed, if there was ever a
case that fit the bill of an "[e]xceptional case . . . where
injustice might otherwise result" the "dust cases" are such
cases.   Nuelsen, 293 F.2d at 462.

     Moreover, "public policy requires" that this issue be
reviewed.  See Nuelsen, 293 F.2d at 462.  Public policy demands
that the Coal Act of 1969, as amended by the Mine Act of 1977, be
read so as to protect miners to the maximum extent permitted by
law.  As set forth above at II.B., the Secretary's interpretation
serves to best protect miners from silicosis, the disabling
condition discussed supra at II.A.  The judge's interpretation,
discussed supra at II.C., diminishes the ability of the
Government to protect miners from silicosis.  Consequently,
because the judge's interpretation of section 209(b) does not
serve to best protect miners from silicosis and the Secretary's
interpretation does serve to best protect miners from silicosis,
public policy requires that the judge's interpretation to be set
aside and the Secretary's interpretation be given weight.

     Thus, both public policy and the interest of  justice
require that the Commission not only review this issue, they also
require that the judge's rejection of the Secretary's reasonable
interpretation of section 209(b) be overturned and the
Secretary's reasonable interpretation of section 209(b) be given
full force and affect.  Again, rules of practice are devised to
promote justice, not to defeat them. . . .   Orderly rules of
procedure do not require sacrifice of the rules of fundamental
justice."  Washington Gas Light Co. v. Virginia Electric & Pow.
Co. (4th Cir. 1971).

     E.  The Secretary prevails in these cases under his
interpretation of section 209(b)

     According to the Secretary's reasonable interpretation of
section 209(b), an operator violates section 209(b) when the
weight of a submitted filter is reduced or changed while the
filter is in the operator's control.  See In re Respirable Dust
Sample Alteration Citations, 14 FMSHRC 1510, 1511.  As stated by
the trial judge:

     each of the citations contested herein charges the mine
     operator with violating the provisions of Section
     209(b) of Part 70, Part 71, or Part 90.   All the
     citations allege a violation of the cited standard in
     virtually identical language:

                    The weight of the respirable dust
          cassette no.______ collected on [date] from a
          sampling entity at this mine has been altered
          while the cassette was being submitted to
          fulfill sampling requirements of Title 30
          C.F.R. Parts 70, 71 or 90.

Id. at 1512 (emphasis added).

     Consequently, to prevail in these cases under the
Secretary's interpretation of section 209(b), it was incumbent
upon the Secretary to establish that there was a change in, or
alteration of, the weight of the cited dust filter while the
filter was in an operator's control.

     That the occurrence of an AWC is accompanied by a change in
the weight on a given filter is axiomatic.  The judge found that
AWC dust dislodgment patterns result in a weight change.  Id. at
1517.

     The only question that remains is who had control of the
filter when it developed the AWC appearance and its accompanying
change in weight.

     The Secretary's witnesses, Dr. Marple and Dr. Rubow,
concluded that  "[t]he operation of the desiccator at [Pittsburgh
Health Technology Center] is not a source of dust dislodgment
patterns [and] [t]he shipment of compliance samples by airplane
is not a probable cause of dust dislodgment patterns on filters.
"  15 FMSHRC at 1481.  In Dr. Miller's opinion, another witness
for the Secretary, the results of his tests excluded mailing as a
cause of the cited AWCs and also ruled out handling in the
Pittsburgh Health Technology Center ("PHTC") as the cause of
AWCs.  Id. at 1485.

     The trial judge stated the following in his findings of
fact:

          D.   The dust dislodgment patterns on the cited
     filters classified under tamper codes 1, 2, 3, and 7
     cannot have resulted from:

          1.   a rapid decrease in air pressure such as
     might occur when the cassettes were transferred by
     airplane, or the handling of the cassettes by the Post
     Office.  The results of Dr. Marple's rapid decrease in
     air pressure experiment and the experience of Dr.
     Grayson who received a number of dust laden filters by
     air and     postal delivery establish that air
     transport and Post Office handling do not cause AWC
     patterns on filters.

          2.   desiccation of the filter capsules in the
     PHTC weighing laboratory.  Dr. Lee's desiccator tests
     which produced what he termed AWCs are of limited
     evidentiary value because of the differences in the
     desiccator used by MSHA and that used by Lee.
     Moreover, most of the photographs of the filters which
     underwent the test do not show dust dislodgment
     patterns similar to cited           AWCs.  Dr. Marple's
     experiment using the MSHA desiccator establishes that
     proper operation of the desiccator (and there is no
     evidence that it was not           used properly by
     MSHA) does not cause dust particle dislodgment.

          3.   handling of the cassettes and capsules in the
     PHTC.  Dr. Lee was of the opinion based on his
     observation of  the handling practices in the PHTC and
     on the results of his stack and chuck tests and rapid
     disassembly tests that 5 to 15 percent of the cited
     AWCs resulted from PHTC handling and 30 to 50 percent
     were           contributed to by PHTC handling.  He did
     not provide the rationale for these percentage
     estimates.  The photographs of the filters after the
     stack and chuck and rapid disassembly tests for the
     most part do not resemble the cited filters.  Based
     upon my consideration of G-170 showing the operation of
     the PHTC and of the various tests and experiments which
     produced AWC-like dust dislodgment patterns, I conclude
     that the PHTC handling, including the stack and chuck
     procedures and the rapid disassembly procedures, did
     not cause the cited          AWCs.

Id. at 1514-1515 (emphasis added).  Thus, it is a fortiori that
the cited filters were in the control of the respondents when the
filters developed the AWC appearance and their accompanying
change in weight.

     In fact, the main thrust of the defendants' arguments in
these cases has been that AWCs are caused by nonintentional
conduct, such as rough handling by employees.  See, e.g. id. at
1489-93, 1495-96 (discussion of Dr. Lee's opinions on
nonintentional causes of AWCs and factors that made certain
filters more susceptible to the nonintentional formation of
AWCs); 1497-99 (discussion of Dr. Grayson's opinions on
nonintentional causes of AWCs and factors that made certain
filters more susceptible to the nonintentional formation of
AWCs); 1499-1507 (discussion of Dr. McFarland's opinions on
nonintentional causes of AWCs and factors that made certain
filters more susceptible to the nonintentional formation of
AWCs); 16 FMSHRC at 861-868 (discussion of the testimony
regarding the rough handling of sampling equipment by
Environmental Safety Department ("ESD")[5] personnel and Urling
miners); Brief of Keystone Coal Mining Corporation at 22-32
(arguments concerning nonintentional causes of AWCs at Urling).
Thus, out of their own mouths, the defendants have proven the
Secretary's case!

     Moreover, even the judge concluded that, in addition to
intentional causes, AWCS can have resulted from:

          1.   impacts to the cassette from dropping or
     striking it;

          2.   impacts to the hose from stepping on it,
     dropping an object on it, striking it against a wall
     while the hose was wrapped around the sampling
     assembly, closing a  door or drawer on it, or sitting
     on it;

          3.   snapping together the two halves of the filter
     cassette.

15 FMSHRC at 1513.  In this connection, the judge further found
that "[a]lthough the expert witnesses for the Secretary and the
mine operators differ as to the likelihood that a dust
dislodgment pattern similar to the cited AWCs would result from
incidents described in numbers 1 and 2 above, the experiments all
show that at least sometimes they do occur."  Id.  Further, in
the mine specific case, the judge found that:

     the dust dislodgment patterns on the cited filters
     could have resulted wholly or partly from the handling
     of the sampling assemblies by the miners being sampled.
     Specifically, they could have resulted from pumps
     falling to the mine floor from the remote box or from
     miners' belts, from pumps being detached from the hoses
     and falling to the floor, from hoses being snagged on
     objects in the mine, from hoses being pinched on the
     mantrip, from hoses being impacted by other pumps on
     the lampman's counter or the mechanic's box, or from
     hoses being wrapped around pumps.

16 FMSHRC at 868 (emphasis added).  And again, the judge found
that:

     the dust dislodgment patterns on the cited Urling
     filters could have resulted wholly or partly from the
     handling of the sampling assemblies by the ESD
     personnel described in this section.  Specifically,
     they could have resulted from the carrying of multiple
     pumps by their hoses, dropping carrying boxes with
     pumps to the floor of a vehicle or onto a table,
     stepping on hoses, placing pumps on hoses, catching
     hoses in car doors or the office door, dropping pumps
     and sampling assemblies on the ground or on the floor,
     dropping dust laden cassettes on the floor, or
     otherwise impacting the hose as previously described.

Id. at 864 (emphasis added).

     Based on the record evidence, the defendants' own experts,
witnesses, and briefs, as well as the judge's findings, the
record supports only one conclusion: that the cited filters
developed their AWC appearances and accompanying weight change
while in the defendant-operators possession.  Or, in other words,
the defendant-operators' altered the cited filters in violation
of section 209(b).  I would therefore reverse the judge's
decisions.

V.  Other Errors Made By The Judge

     Although I conclude that the above fundamental error
committed by the judge is more than sufficient to reverse his
decisions, I nevertheless wish to comment on a number of other
reversible errors made by the judge which would provide separate,
independent grounds for overturning his decisions.

     A.  Burden of Proof

     The judge erred in his application of the burden of proof in
the common-issues case.  That error infected both his
common-issues decision and his decision in the mine-specific
case.

     In the common-issues case not only did the judge erroneously
reject the Secretary's interpretation of section 209(b), he
also applied a burden of proof standard that was impossible
for the Secretary to meet under the judge's interpretation
requiring the Secretary to prove AWCs were the result of
intentional conduct.  While using the term "preponderance of
the evidence," the judge's formulation of that standard
bears little, if any, resemblance to that standard as it is
understood at common law.  At common law, preponderance of
the evidence "means that amount of credible evidence which
is most persuasive on a particular point."  Herman & MacLean
v. Huddleston, 459 U.S. 375, 390 (1983).  The preponderance
of the evidence standard has also been defined at common law
as "[t]he greater weight of evidence, evidence which is more
convincing than the evidence which is proffered in
opposition to it."  St. Paul Fire & Marine Insurance Company
v. U.S., 6 F.3d 763, 769 (Fed. Cir. 1993), reh. denied.  In
general, preponderance of the evidence is such evidence as,
when weighed against that opposed to it, has the more
convincing force that something is more likely so than not
so.  Merzon v. County of Suffolk, 767 F. Supp. 432, 444 -
445 (E.D. N.Y. 1991); see Standard Civil Jury Instruction
for the District of Columbia з 2-8 (revised ed. 1985); see
also, Bazemore v. Friday 478 U.S. 385, 400 (1986); Smith v.
U.S., 726 F.2d 428, 430 (8th Cir. 1984); Nissho-Iwai Co.,
Ltd. v. M/T Stolt Lion, 719 F.2d 34, 38 (2nd Cir. 1983); and
Hopkins v. Price Waterhouse, 737 F. Supp. 1202, 1204 n. 3
(D. D.C. 1990).

     The preponderance standard is satisfied when the party
bearing the burden has shown that "the existence of a fact
is more probable than its non-existence. . . ."  Concrete
Pipe and Products of  California, Inc. v. Construction
Laborers Pension Trust for Southern California, 508 U.S.
___ at ___, 113 S. Ct. 2264, 2279 (1993) (citations
omitted).  Thus, if the evidence presented by the Government
establishes that intentional tampering is more likely than
not the cause of the AWC appearances, the Secretary has
sustained his burden of proof.  See Hopkins v. Price
Waterhouse, 737 F. Supp. 1202, 1204  n.3 (D. D.C. 1990).

      The judge in his decision on common issues applied the
following standard of proof:

          The Secretary has the burden of proof on these issues.
     The burden requires that the Secretary show by a
     preponderance of  evidence that . . .  the cited AWCs can
      only have resulted from intentional acts[.]

15 FMSHRC at 1463-64 (emphasis added).  This is a burden of
proof that the Secretary could not have satisfied.  By using
the term "only" the judge, in essence, required the
Secretary to eliminate all other possible causes of, and
reasonable explanations for, AWCs in order to prevail.  This
point is highlighted by the judge's own conclusions of law.
Specifically, Judge Broderick concluded that:

          The Secretary has failed to carry his  burden of
     proving by a preponderance of
     the evidence that deliberate conduct on the part of the
     cited mine operators is the only
     reasonable explanation for the cited AWCs.

Id. at 1521 (emphasis added).  Over and over again the judge
required the Secretary to prove that the cited AWCs can only
have resulted from intentional acts and deliberate conduct.
Specifically, the judge required the Secretary to prove AWCs
could only have resulted from intentional acts as follows:

     The Secretary has the burden of proof on these issues.

     The burden requires that the Secretary show by a
     preponderance of  evidence that (1) the term "AWC" has
     a coherent meaning and was consistently applied; (2)
     the cited AWCs can only have resulted from intentional
     acts; (3) the AWCs resulted in weight loses in the
     cited filters.

15 FMSHRC at 1463-64.

     No matter how many times he intoned the phrase
"preponderance of the evidence," the simple fact remains that the
judge required the Government to prove that the only cause of the
AWCs was intentional conduct, to the exclusion of all other
causes!

     Under the correct burden of proof the Secretary need not
eliminate all other possible, potential, or even reasonable
causes of AWC in order to satisfy the preponderance of the
evidence standard.  As long as the weight of credible evidence
shows that other possible or reasonable explanations are less
likely to be the cause of  the AWCs than intentional tampering,
the Secretary must prevail.  Even in criminal proceedings the
Government is not required to exclude every other reasonable
hypothesis so long as the evidence as a whole supports the
allegation of misconduct "beyond a reasonable doubt."  See U.S.
v. Rivera Rodriquez, 808 F. 2d 886, 890 (1st Cir. 1986).  In
essence, the judge held the Secretary to an even higher burden of
proof than the criminal standard, "beyond a reasonable doubt," by
requiring him to eliminate all other possible, potential, and
even reasonable causes of AWC in order to prevail.  This fact is
revealed through the judge's analysis leading up to his
conclusion that the Secretary failed to prove that deliberate
tampering was "the only reasonable explanation for the cited
AWCs."  15 FMSHRC at 1521 (emphasis added).  Specifically, Judge
Broderick concluded that:

     the record shows too many other potential causes for the
dust dislodgement patterns on the cited AWCs for me to accept the
Secretary's circumstantial evidence as sufficient to carry his
burden of proof that the mine operators intentionally altered the
weight on the cited filters.

Id. at 1522 (emphasis added).[6]  Over and over again the judge
stated that AWCs could possibly have resulted from unintentional
conduct.  Specifically, the judge stated:

          . . .  Findings of Fact II.C.1, 2, and 3
          indicate that the appearances of the filters
          cited under tamper codes 1, 2,  3, and 7 can
          have resulted from many different incidents
          or accidents unrelated to intentional
          tampering.

15 FMSHRC at 1521 (emphasis added).  Again the judge stated:

          C.    The dust dislodgment patterns on the cited
     filters classified under tamper codes 1, 2, 3, and 7
     can have resulted from:

          1. impacts to the cassette from dropping or
     striking it;

          2. impacts to the hose from stepping on it,
     dropping an object on it,
        striking it against a wall while the hose was wrapped
        around the sampling assembly, closing a door or drawer on
        it, or sitting on it;

          3. snapping together the two halves of
    the filter cassette.

15 FMSHRC at 1513 (emphasis added).  Again, the judge stated:

    Dust dislodgment patterns on the cited filters classified
    under tamper code 5 can have resulted from someone
    inserting a cotton swab into the cassette inlet and
    rubbing or twisting it on the filter.

    1.  Dust dislodgment patterns on the cited filters classified
        under tamper code 5 can have resulted from someone
        inserting a cotton swab into the cassette inlet and
        rubbing or twisting it on the filter.

    2.  Dust dislodgment patterns on the cited filters classified
        under tamper code 5 can have resulted from dropping the
        filter cassettes.

    D. The dust dislodgment patterns on the cited filters
    classified under tamper code 9 can have resulted from
    someone intentionally inserting something in the cassette
    inlet.

15 FMSHRC at 1518 (emphasis added).  Yet again, the judge stated:

    Findings of Fact II.C.1, 2, and 3 indicate that the
    appearances of the filters cited under tamper codes 1, 2,
    3, and 7 can have resulted from many different incidents
    or accidents unrelated to intentional tampering.

15 FMSHRC at 1521 (emphasis added).  And again, the judge stated:

    In summary, the record shows too many other potential
    causes for the dust dislodgment patterns on the cited
    AWCs for me to accept the Secretary's circumstantial
    evidence as sufficient to carry his burden of proof that
    the mine operators intentionally altered the weight on
    the cited filters.

15 FMSHRC at 1522 (emphasis added).  Also, the judge stated that
all of the following could have contributed to AWCs:

    F.  Sampling assembly variables

                              * * *

    3. A filter cassette with a smaller filter-to-foil distances
    is more prone to an AWC dust dislodgment pattern than one
    with a larger filter-to-foil distance.

    4. A floppy filter is more prone to an AWC dust dislodgment
    pattern than a more taut filter.

                              * * *

    6. The firmness or softness of the sampling assembly hose may
    be  related to the formation of an AWC.

15 FMSHRC at 1515 and 1516.  Yet again, the judge stated:

    . . . filters with a shorter filter-to-foil distance or
    which are floppy are more susceptible to reverse air AWC
    formation.

15 FMSHRC at 1520.

    By requiring the Secretary to prove that the cited AWCs can
only have resulted from intentional acts and deliberate conduct
to the exclusion of any other potential cause, the judge
committed reversible error.

    Contrary to the assertions of my colleagues, the judge's
decision does not support the conclusion that his use of the term
"only" was merely made in reference to the issue presented.  As
set forth above, in delineating the burden of proof, the judge
clearly required that the Secretary prove that the cited AWCs can
only have resulted from intentional acts.  He then found that the
Secretary failed to carry that burden because there were too many
other "could haves" and "can haves."  ONLY means ONLY!  It does
not mean more likely than not, there is a quantitative
difference!

    The judge's failure to apply the correct standard of proof
infected his entire evaluation of the evidence, not only in the
common-issues proceedings, but also in the mine-specific
proceedings.  In the mine-specific proceedings, the judge
utilized the same incorrect standard of proof  that he used in
the common-issues proceeding.  In discussing his ultimate
findings and conclusions of law, Judge Broderick made the
following comments regarding the standard of proof:

        The same evidentiary burden is applicable in the
    Keystone mine-specific case as was applicable in the
    common issues trial[.]

16 FMSHRC at 895 (emphasis added).  Judge Broderick explicitly
"incorporated" into "any decision following the mine-specific
trial" the findings and conclusions in his common-issues
decision.  15 FMSHRC at 1522; see also 16 FMSHRC at 861.
Moreover, the judge stated that "[t]he same evidentiary burden
[was] applicable in the Keystone mine specific case as was
applicable in the common issues trial . . . ."  16 FMSHRC at 895.

    The judge repeatedly held in his mine-specific decision that
non-intentional conduct could have caused the AWCs.
Specifically, the judge stated the following:

    My decision on the common issues trial made certain
    findings of fact.  I found that reverse air AWCs could
    have resulted from intentional acts, such as blowing or
    otherwise directing a pulse of air into the cassette
    outlet or introducing a vacuum source into the cassette
    inlet.  I found that such AWCs could also have resulted
    from impacts to the cassette or the sampling hose, which
    might have occurred accidentally during normal handling
    of the sampling equipment at the mines, or from snapping
    together the two halves of the cassette.  I further found
    that the reverse air AWC dislodgment patterns could not
    have resulted from mailing the cassettes from the mines
    to the PHTC, or the desiccation of the filter capsules or
    other handling of the cassettes and capsules at the PHTC.
    I found that the filter-to-foil distance in the cassettes
    and the floppiness of the filters were factors in the
    susceptibility of filters to AWC dislodgments; and that
    the firmness or softness of the sampling assembly hose,
    and variables in the dust on the filter may have affected
    the susceptibility to AWCs.    .   .   .   With respect
    to filters cited under tamper codes other than those
    considered the result of reverse air, I found that those
    classified under tamper codes 5 and 9 could have resulted
    from intentional tampering, but those classified under
    codes 8 and 10 were not consistently classified or were
    not shown to have been likely caused by intentional acts.

16 FMSHRC at 861 (emphasis added).  And again:

        I find as facts that the dust dislodgment patterns on
    the cited Urling filters could have resulted wholly or
    partly from the handling of the sampling assemblies by
    the ESD personnel described in this section.
    Specifically, they could have resulted from the carrying
    of multiple pumps by their hoses, dropping carrying boxes
    with pumps to the floor of a vehicle or onto a table,
    stepping on hoses, placing pumps on hoses, catching hoses
    in car doors or the office door, dropping pumps and
    sampling assemblies on the ground or on the floor,
    dropping dust laden cassettes on the floor, or otherwise
    impacting the hose as previously described.

16 FMSHRC at 864 (emphasis added).  And again:

    I find as facts that the dust dislodgment patterns on the
    cited filters could have resulted wholly or partly from
    the handling of the sampling assemblies by the miners
    being sampled.  Specifically, they could have resulted
    from pumps falling to the mine floor from the remote box
    or from miners' belts, from pumps being detached from the
    hoses and falling to the floor, from hoses being snagged
    on objects in the mine, from hoses being pinched on the
    mantrip, from hoses being impacted by other pumps on the
    lampman's counter or the mechanic's box, or from hoses
    being wrapped around pumps.

16 FMSHRC at 868 (emphasis added).  And again:

        During the period from August 1, 1989 to May 31,
    1990, two kinds of continuous miners were used at Urling:
    the Lee-Norse miners operated from controls on the
    machine, and the Joy miners operated from a remote
    control box (some Joy miners could be operated from a
    remote control box (some Joy miners could be operated
    from the remote control box or from controls on the
    miner).  The Lee-Norse miner vibrated when cutting coal,
    so that the sampling head attached to the canopy swayed
    back and forth and contacted the canopy post.  I find
    that this could have caused or contributed to abnormal
    dust patterns on Urling filters.

16 FMSHRC at 882 (emphasis added).  And again:

    I find as facts that there were changes in the handling
    practices of end personnel beginning in the spring of
    1990.  Specifically, Eget, who handled the sampling
    equipment in a rougher manner than the others, did not
    pick up pumps and samples from April 9 to May 10, 1990.
    Snyder and the other dust technicians were more careful
    in their handling and carrying of pumps and hoses, and,
    in particular, were careful to avoid hose impacts because
    of the MSHA dust sample investigation.   These changes
    could have been factors in the decrease in the number of
    cited AWCs in the Spring of 1990.

16 FMSHRC at 884 (emphasis added).  And again:

    I conclude that the reverse air dust dislodgment patterns
    on the cited Urging filters could have resulted from
    accidental impacts to the sampling equipment,
    particularly the hoses, in the Urling mine during
    sampling or after the samples were taken.  I conclude
    that the dust dislodgment patterns did not result from
    intentional tampering . . . .  On the basis of my
    findings on page 8, supra, I conclude that the reverse
    air dust dislodgment patterns on the cited Urling filters
    could have resulted from accidental impacts to the
    sampling equipment, particularly the hoses, while the
    samples were being handled by R & P's ESD lab personnel.
    Also, on the basis of my common issues decision, I
    conclude that reverse air dust dislodgment patterns on
    the cited Urling filters could have resulted from
    intentional tampering including blowing by mouth or
    otherwise directing air into the cassette outlet or
    introducing a vacuum source into the cassette inlet.

16 FMSHRC at 898 (emphasis added).

    As noted above, the Government need not eliminate all other
possible or potential causes of AWCs.  The judge, under his
erroneous interpretation of section 209(b), was not called upon
to discover how many possible explanations there could be for
AWCs but, rather, to determine if intentional tampering was more
likely than not the cause of the AWCs.  The Secretary must
prevail under the judge's erroneous interpretation of section
209(b), regardless of the number of  could haves and can haves,
so long as the Secretary establishes that intentional tampering
is more likely than not the cause of AWCs.

    In his own words, the judge carried over his contaminated
formulation of the burden of proof from the common issues trial
into the mine specific trial.  This is evidenced by his continued
mantra "could have"/ "can have" in connection with possible, non-
intentional causes of AWCs.  15 FMSHRC at 1513, 1514, 1515, 1516,
1518, and 1521; 16 FMSHRC at 861, 864, 868, 882, 884, and 898.
Consequently, neither decision can be allowed to stand inasmuch
as each one contains the exact same fatal flaw:   the judge's
pronouncement and application of an erroneous burden of proof.
Both decisions, on this ground alone, must be set aside because
this error made it impossible for the Secretary to prove his case
under the judge's erroneous interpretation of section 209(b).

    Although such a legal error would normally result in a remand
order, the facts of this case, as discussed below, support only
one conclusion: that the Secretary established that AWCs were
more likely than not the result of intentional conduct.  I would
therefore reverse the judge's decisions.

    B.  Under the Correct Standard of Proof, the Secretary
Presented Sufficient Evidence to Satisfy the Preponderance of the
Evidence Standard and the Judge's Conclusions to the Contrary are
not Supported by Substantial Evidence.

    In spite of the fact that the trial-judge erroneously forced
the Government to prove its case by showing that AWCs were the
result of intentional misconduct, in fact the Government did
prove by a preponderance of the evidence that AWCs were caused by
intentional misconduct.  The judge's conclusion, to the contrary,
is not supported by substantial evidence.  Based on the
substantial evidence test, I would reverse the judge's decision
in both the common-issues case and in the mine-specific case.

    The Commission is bound by the terms of the Mine Act to apply
the substantial evidence test when reviewing an administrative
law judge's factual determinations.  30 U.S.C. з
823(d)(2)(A)(ii)(I); Wyoming Fuel Co., 16 FMSHRC 1618, 1627
(August 1994).  That standard of review requires that a fact
finder weigh all probative record evidence and that a reviewing
body examine the fact finder's rationale in arriving at his
decision.  Wyoming Fuel, 16 FMSHRC at 1627; see also, Mid-
Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994),
citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89
(1951).  A judge must analyze and weigh the relevant testimony,
make appropriate findings, and explain the reasons for his
decision.  Wyoming Fuel, 16 FMSHRC at 1627; Mid-Continent, 16
FMSHRC at 1222, citing The Anaconda Co., 3 FMSHRC 299, 299-300
(February 1981).  An appellate body reviewing a judge's factual
findings will not affirm his findings if they are unreasonable,
incredible or if there is dubious evidence to support them.  See
e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293
(6th Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d
1255, 1263 (7th Cir. 1980).

    As outlined below, under the correct burden of proof -- which
the judge did not apply[7] -- the Government presented sufficient
evidence during the course of the common-issues trial and the
mine-specific trial to establish its case, even under the judge's
erroneous interpretation of section 209(b).

     1.  Expert Witnesses

        (i).  The judge erred in failing to credit Mr. Thaxton.

     I find that the Government, through Mr. Thaxton, presented
compelling testimony that AWCs were not the result of normal
handling conditions but, rather, were more likely than not
the result of deliberate and intentional misconduct.  The
judge erred in failing to credit Mr. Thaxton's testimony on
several fronts.

     Interestingly enough, the ALJ accepted Mr. Thaxton as an
expert in the common-issues trial and the mine-specific trial
in the fields of respirable dust sampling and in determining
normal and abnormal patterns on filters.  16 FMSHRC at 872;
15 FMSHRC at 1473.  The judge accepted Mr. Thaxton's opinion
that the AWCs at Urling "did not result from normal
sampling[.]"  16 FMSHRC at 897 (emphasis added).  These two
findings have led to a conclusion that Mr. Thaxton's ultimate
opinion on the causes of AWCs was persuasive.  However, the
judge inexplicably made a finding contrary to Mr. Thaxton's
opinion.  Specifically, the judge held that deliberate and
intentional conduct was not the most likely cause of AWCs.
16 FMSHRC at 897; 15 FMSHRC at 1521.  This finding was
inconsistent with his above cited conclusions and can not be
sustained under the substantial evidence test.  Further, the
judge concluded that Mr. Thaxton's reasons for not citing
filters designated as "no calls" were tenuous and not
appropriate exercises of MSHA's discretion.  The judge's
conclusions in this connection constitute an intrusion on
MSHA's prosecutorial discretion.  Contrary to the judge's
conclusion, Mr. Thaxton's decision not to cite the 400 no-
call filters -- which only amounted to less than ten percent
of the 5,000 cited AWCs and less than five percent of the 75
cited AWCs at Urling -- did not affect the coherence or
consistency of MSHA's citation criteria.  In fact, it is
impossible to reconcile this adverse finding by the judge
with his determination that Mr. Thaxton's classification
system was coherent and consistent.  See 15 FMSHRC at 1469
and 16 FMSHRC at 897.  The judge's finding that Mr. Thaxton's
reasons for not citing filters designated as "no calls" was
tenuous and not an appropriate exercise of the MSHA's
discretion is inconsistent with his twice stated finding that
Mr. Thaxton's classifications of AWCs were coherent and
consistent.  His findings; therefore, are not supported by
substantial evidence and can not be sustained.

        (ii).  The judge erred in crediting Dr. Lee's opinions
    over Mr. Thaxton's opinions

     There is not substantial evidence to support the judge's
acceptance of Dr. Lee's opinions over Mr. Thaxton's opinions.
Many of Dr. Lee's opinions were speculative and not supported
by experimental evidence.  Specifically, Dr. Lee's opinion
concerning the degree of force necessary to produce dust
dislodgement on the cited filters being less than that caused
by deliberate blowing in a reverse direction is without any
experimental or scientific support.  Consequently, the judge
erred in crediting and relying on Dr. Lee's opinion in this
connection.

     Moreover, Dr. Lee's system of classification is as unreliable
as his ability to apply that system during the course of the
trial.  Specifically, Dr. Lee  was only minimally successful
in correctly classifying cited filters under his systems of
classification during the trial.  The evidence reveals in
this connection that under his Richard J. Lee Group type-
system ("RLJG"), Dr. Lee could replicate his classifications
less than 50% of the time.  In connection with his Feature
Code Classifications, he was able to replicate his
classifications only 10 out of 35 times.  15 FMSHRC at 1489.
In connection with his mixed mode classifications system, Dr.
Lee was unable to identify: which mode occurred first; the
characteristics of a reverse air pulse on his group D; or the
characteristics of a impact on most of his group A.
Moreover, Dr. Lee could not always identify both of the
events in his mixed mode classifications or say for sure that
there was a mixed mode appearance on many of the filters.  In
addition, Dr. Lee could not identify whether a pattern was
caused by a mixed mode event or by a single event, nor could
he rule out that the pattern was caused by reverse air flow.

     Dr. Lee's opinions were riddled with inadequacies and
inconsistencies.  It is incomprehensible that the ALJ could
rely on such facially flawed testimony or that the majority
could sustain the judge.  The judge erred in relying on Dr.
Lee's opinion and, consequently, his findings in this
connection cannot be sustained on the basis of substantial
evidence.

        (iii).  The judge erred in relying on certain expert
    testimony that was withheld from the Secretary during
    discovery

     Neither the opinion of Dr. Corn regarding accidental causes
of AWCs nor the opinion of Dr. Lee regarding the affect of
sprays and scrubber systems on the formation of AWCs were
stated during the discovery phase of this litigation.
Although expressly asked by the Secretary during the
discovery phase of this litigation, Dr. Corn and Dr. Lee
responses concerning these matters were either not
forthcoming or very cursory.  At trial, on direct examination
by their counsel, Dr. Corn and Dr. Lee gave in depth
testimony concerning these matters.  In spite of the
Secretary's objection that he was surprised by their
testimony and, consequently, prejudiced because he could not
adequately cross examine or offer rebuttal evidence, the
judge allowed into the record Dr. Corn's testimony regarding
accidental causes of AWCs and Dr. Lee's testimony regarding
the affect of sprays and scrubber systems on the formation of
AWCs.

     The discretion of an ALJ to permit the introduction of
evidence which is not shared during discovery and to exclude
the introduction of evidence which is not shared during
discovery is not without limits.   Defendant's failure to
meet the requirements of Rule 26 should have resulted in the
exclusion of the proffered evidence when the Government
objected.  See Wright & Miller Federal Practice and Procedure
Civil 2d з 2050 (1994); see also, Freund v. Fleetwood
Enterprises, Inc., 956 F.2d 354, 356-59 (1st Cir. 1992);
Jenkins v. Whittaker Corp., 785 F.2d 720, 728 (9th Cir.
1986); Weiss v. Chrysler Motors Corp., 515 F.2d 449, 454-57
(2d Cir. 1975); Allread v. City of Grenada, 988 F.2d 1425,
1435-36 (5th Cir. 1993).  Under the circumstances, as set
forth above, it is clear that neither the opinion of Dr. Corn
regarding accidental causes of AWCs nor the opinion of Dr.
Lee regarding the affect of sprays and scrubber systems on
the formation of AWCs was properly disclosed during
discovery, in spite of the Secretary's best efforts to
ascertain these opinions during the that phase of this
litigation.  It is equally clear that the Secretary was
prejudiced by the surprised he encountered and the
accompanying impact that surprise had on his ability to
effectively cross examine Dr. Corn and Dr. Lee and to present
rebuttal evidence.  Permitting Dr. Corn and Dr. Lee's
testimony to go into the record when it should have been
excluded under Rule 26 was improper.  Had Dr. Corn's
testimony been excluded, the respondent's suggestion that
unintentional conduct affects the occurrence of AWCs would
have been, at the very least, significantly weakened.  Had
Dr. Lee's testimony been excluded, the respondent would not
have presented any evidence on the affect of sprays and
scrubber systems on the formation of AWCs.  To the extent
that the judge relied on this testimony in reaching his final
conclusion, that conclusion is not properly supported by
substantial evidence.

        (iv).  The judge erred in relying on Dr. Corn's
    conclusions on accidental causes of AWCs because they lacked
    scientific foundation

     The assertion of Dr. Morton Corn, the respondent's witness,
that events associated with collection, handling, and
analysis provided a more plausible explanation for AWCs than
tampering was not only improperly admitted, it was not made
on the basis of scientific experimentation.  Further, in
connection with Dr. Corn's digital image analysis study, the
judge found it was "complex, confusing, and contradictory[.]"
15 FMSHRC at 1512 (emphasis added).  Consequently, to the
extent the judge relied Dr. Corn's opinion in this connection
to support Dr. Lee's opinions, he erred.  For the judge to
have relied on Dr. Corn's opinion in this connection to
support Dr. Lee's opinions was inconsistent with his
rejection of Dr. Corn's digital image analysis study, upon
which Dr. Corn relied in supporting Dr. Lee.  Thus, the
judge's determination in this connection was not supported by
substantial evidence.

        (v).  The judge erred in accepting the opinion of Dr. Lee
    over the opinion of Dr. Marple on the effect of sprays and
    scrubber systems on the formation of AWCs

     Initially, the judge erred in accepting Dr. Lee's opinion
without adequately articulating his reasons for doing so.  A
reviewing court "is not compelled to respect" credibility
choices "based on an inadequate reason or no reason at all."
Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984),
quoting NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 843
(5th Cir. 1978).  The judge's crediting of Dr. Lee over Dr.
Marple was in error.  The judge failed to adequately
articulate his reasons for crediting Dr. Lee over Dr. Marple
and, therefore, his crediting of Dr. Lee can not be
sustained.  Particularly in light of the serious
inconsistencies between Dr. Lee's testimony on the affect of
sprays and scrubber systems on the formation of AWCs and the
actual affect, as outlined below.  Ona Corp. v. NLRB, 729
F.2d at 719.

     Dr. Lee's testimony regarding the affect of sprays and
scrubber systems on the formation of AWCs is unreliable
because of his lack of expertise, his failure to make factual
observations, and the lack of scientific support for his
opinions.  Further, the scrubber systems can not explain the
sudden decline in AWC appearances on or about March 26 at the
Urling mine.  On March 19, 1990, MSHA instituted an AWC void
code.  The void code was issued in response to MSHA's
discovery that operators were submitting filters exhibiting
white circular areas in the center of the filters --
abnormally white centers -- a phenomenon that was both
abnormal and suspicious.  The void code was a three-letter
code (AWC) which indicated to an operator submitting a
respirable dust sample that MSHA would not accept its
submitted respirable dust sample to determine whether the
operator met the respirable dust standard.  In other words,
MSHA informed operators that submitted samples were voided
because of AWC appearances.  Thereafter, MSHA began rejecting
submitted respirable dust samples that displayed an
abnormally white center.  Over all, MSHA issued approximately
5,000 citations to 847 mines and assessed more than $6.5
million in penalties.  Once word of the void code spread
throughout the industry, filters with AWCs all but vanished.
For example, in the eight months preceding the void code
notification date, 58% (36 out of 68) of the samples from
three continuous mining units which were not equipped with
scrubbers had AWCs while during the eight month period
following March 26 of the 65 samples submitted from the same
three machines -- which were still not equipped with
scrubbers systems  -- none exhibited AWC appearances.  K
Stip. No. 94; K Exs. G-544; R-2006A.  In light of this
uncontradicted evidence it is astonishing that the judge
still found that sprays and scrubber systems had an affect on
the formation of AWCs.  Moreover, this evidence provides
compelling proof that it was the institution of the void code
and not the sprays and scrubber systems that affected the
dramatic reduction in the formation of AWCs.  The judge's
determination in this regard is unsupported by substantial
evidence.

    Moreover, the judge's conclusion that Dr. Marple's testimony
was inconsistent demonstrates that he did not fully
understand Dr. Marple's testimony.  In this connection, Dr.
Marple testified that moisture within and on the face of the
coal seam could affect the adhesion of the dust particles to
the filter.  However, Dr. Marple testified that once coal
dust was airborne and carried to the filter the dust was not
moist and, thus, water scrubbers had no affect on the
adhesion of the dust particles to the filter.  The judge
failed to recognize this important aspect of the testimony
and, consequently, his conclusion that Dr. Marple's testimony
was inconsistent is simply erroneous and can not be sustained
under the substantial evidence test.  Dr. Marple's opinions
should have been credited over Dr. Lee's opinions, and not
doing so was error.

      2.  The judge erred in failing to consider the optional
quartz sampling program

     Initially, I reject the judge's conclusion that because the
"persons at the [Pittsburgh Health Technology Center] who
examined the quartz samples for AWC appearances were not
called to testify" it was "impossible" for him to "draw any
conclusions from the fact that no appearances on quartz
samples were noted or cited by MSHA."  16 FMSHRC at 888.  The
witness called by the Secretary to present testimony on the
results of the optional quartz sampling program at the
Pittsburgh Health Technology Center, was Paul Parobeck.
Since 1984, Mr. Parobeck had supervised the two individuals
at the Pittsburgh Health Technology Center who examined the
quartz samples for AWC appearances.  Mr. Parobeck observed
and reviewed the work of these two individuals, as well as
all of the relevant Rochester and Pittsburgh's records.[8]
Therefore, Mr. Parobeck was competent to offer testimony in
connection with the results of the optional quartz sampling
program at the Pittsburgh Health Technology Center.  The
judge's determination to the contrary is erroneous.

     The judge erred in failing and refusing to consider the
results of the optional quartz sampling program at the Urling
mine.  It is logical to assume that if AWCs were produced on
respirable dust samples by inadvertent or unintentional
conduct at a given rate, AWCs would also be produced on
quartz samples by those same events at a comparable rate.
This is so because the quartz samples were collected in the
exact same manner and under the exact same circumstances as
the respirable dust samples.  The critical difference between
respirable dust samples and quartz samples is that it was in
Rochester and Pittsburgh's interest to achieve low dust
levels in the respirable dust sampling program while it was
in R&P's interest to achieve high dust levels in the quartz
sampling program.  Contrary to what one would expect to see
if the AWCs were being caused by inadvertent or unintentional
conduct, the evidence submitted by the Government established
that none of the 75 quartz samples taken by R&P exhibited an
abnormal appearance while 40% of the respirable dust samples
exhibited an abnormal appearance.  This is astonishing
evidence and strongly suggests that the respirable dust
samples were altered.  That the levels of abnormal
appearances in the quartz samples were not exhibited at a
rate comparable to the levels of abnormal appearances in the
repairable dust samples powerfully suggests that the AWCs on
the respirable dust samples were not produced by inadvertent
or unintentional conduct.

     The judge reasoned that because the actual quartz samples no
longer exist (as a result of the testing process which
destroys them) he could not rely on them.  While it is true
that the actual filters no longer existed because the process
of testing the quartz samples destroys them, this fact is
insufficient to exclude perhaps the single most powerful
piece of evidence of deliberate and intentional conduct in
the mine-specific trial.  This evidence, enriched by the
other evidence and expert testimony, was sufficient to
satisfy the Secretary's burden of proof and to establish that
the cited AWCs were more likely than not the result of
Urling's deliberate and intentional conduct.  Urling did not
set forth any believable or credible explanation to rebut,
counter or explain away this extraordinary evidence.

     3.  Statistical Evidence

        (i).  The significance of the void code

     On March 19, 1990, MSHA instituted an AWC void code. 
The void code was issued in response to MSHA's discovery
that operators were submitting filters exhibiting white
circular areas in the center of the filters -- abnormally
white centers -- a phenomenon that was both abnormal and
suspicious.  The void code was a three-letter code (AWC)
which indicated to an operator submitting a respirable
dust sample that MSHA would not accept its submitted
respirable dust sample to determine whether the operator
met the respirable dust standard.  In other words, MSHA
informed operators that submitted samples were voided
because of AWC appearances.  Thereafter, MSHA began
rejecting submitted respirable dust samples that
displayed an abnormally white center.  Over all, MSHA
issued approximately 5,000 citations to 847 mines and
assessed more than $6.5 million in penalties.

     (ii).  The judge's determination that the statistical
evidence does not establish that AWCs resulted from
intentional tampering which ceased after the institution
of the void code is not supported by substantial evidence

     The mountain of statistical evidence in this case,
when combined with the other evidence and the testimony
of expert witnesses, points to one inevitable and
unavoidable conclusion, and the Secretary's brief put it
best when it stated: "Something dramatic happened on or
about March 26, 1990"  and it "defies human credulity and
common sense to conclude, as the judge did, that [the
statistical evidence does] not constitute compelling
support for the Secretary's explanation of why AWCs
routinely occurred and then abruptly ceased to occur."
Id. at 39.

    In brief, the statistical evidence establishes that after
the institution of the void code the number of voided filters
plummeted.  Specifically, the evidence demonstrates that
after the institution of the void code the number of
voided filters sent on to Mr. Thaxton from the
Government's Pittsburgh Health Technology Center dropped
from an average of 6.5% to an average of less than 1%.
Further, the evidence shows that the drop in the rate of
samples exhibiting AWCs submitted by all of Rochester and
Pittsburgh's mines was even more dramatic:  cassettes
submitted before March 26, 1990, and manufactured during
a nine day period, manifested AWCs at a rate of 29% while
cassettes manufactured during that same period but
submitted after March 26, 1990, manifested AWCs at a rate
of 1%.  The most dramatic drop in the rate of samples
exhibiting AWCs, however, was at the Urling mine:
cassettes submitted before March 26, 1990, and
manufactured during a nine day period, manifested AWCs at
a rate of 25% while cassettes manufactured during that
same period but submitted after March 26, 1990,
manifested AWCs at a rate of 0%.  Moreover, R&P's
logbooks established that: (1) when Urling used cassettes
from the 300,000 series before March 26, 1990,
approximately 40% (66 of 165) had AWCs; and (2) when
Urling used cassettes from the 300,000 series after March
26, 1990, less than 2% (1 of 59) had AWCs.  This brief
sampling of the evidence demonstrates quite clearly that
it was the void code, and not a miraculous convergence of
unrelated natural and unnatural phenomenon that caused
the precipitous drop in the rate of AWCs.  It stretches
the bounds of the human imagination to suggest, as the
respondents and intervenors have, that changes in the
mine environments; changes in the filter manufacturing
process, and changes in the handing of filter cassettes
all occurred on or about the third week of March 1990 and
this strange and miraculous convergence of events is what
caused the AWC rate to plummet.  To ask us to believe
that is to ask us to believe that elephants fly.  The
judge erred in discounting the significance of the
statistical evidence and, consequently, his decisions are
not supported by substantial evidence.

     (iii).  Contrary to the judge's determination, bimonthly
sampling does not merely reflect how operators carry out
dust sampling

    The evidence established that the samples from the Urling
mine were submitted at varying time intervals and were
not submitted on a strict and regular bimonthly interval.
Consequently, contrary to the judge's determination,
bimonthly sampling does not merely reflect how operators
carry out dust sampling.  Further, the manipulation of
the evidence into bimonthly groupings by the respondents,
especially the March 1 to April 30, 1990 grouping, masks
the significance of the March 26 date by smoothing out
the variations in the AWCs rates during that critical
time period.  Thus the judge's erroneous determination
that the samples at Urling were submitted on a strict and
regular bimonthly interval is unsupported by substantial
evidence.  Further, viewing the statistics in a
bimonthly format caused the judge to erroneously discount
the statistical evidence.  As set forth above, the sudden
drop in the occurrences of AWCs at the Urling mine was
simply astonishing.  Obviously what happened here was
that the defendant, having been caught, saw to it that
the illegal acts were stopped.  The judge's discounting
of this evidence is similarly mind boggling.  Moreover,
the judge's determination is simply not supported by
substantial evidence.

    Contrary to the judge's determination, the evidence
shows that March 26, 1990, is the date that Rochester and
Pittsburgh's Environmental Safety Department personnel
became aware of the void code.  Specifically, Mr. Donald
Eget, supervisor of the Environmental Safety Department
("ESD"), testified that he knew little concerning the
details of MSHA's investigation in February and March of
1990.  All of Mr. Eget's information was second hand and
he did not recall receiving any details in connection
with MSHA and the United States Attorney's investigation
of tampering at Rochester and Pittsburgh ("R&P").  Mr.
Eget was unfamiliar with the concept of AWCs prior to the
void code notification.  Upon receipt of the void code
Mr. Eget called MSHA for an explanation of the code.  Mr.
Eget's assistant, Mr. Houck, had less information than
Mr. Eget.  Most importantly, after Mr. Eget called MSHA
for an explanation of the code, the flow of AWCs from ESD
came to an abrupt halt.

     4.  The judge erred in his conclusions regarding filter-to-
foil distances

     The judge's conclusion that the filters produced before
February 13, 1990, were more likely to have a short
filter-to-foil distances of 2mm, or less than those
produced after February 13, 1990, was based on a woefully
inadequate sample size.  The evidence establishes that
fewer than 100 measurements  (out of 200,000 filters) for
the before period were taken and more than 1,700
measurements (out of 200,000 filters) for the after group
were taken.  Further, within each group there were widely
varying measurements, with a substantial percentage of
short filter-to-foil distances measured in the "before"
group.  Moreover, the comparisons between the two groups
were compromised by data from the more than 4,000
measurements of filter-to-foil distance of filters that
were manufactured between October 25, 1990, and February
15, 1992, a period well after the institution of AWC void
code.  Even so, those 4,000 measurements indicated that
50% of the filters being manufactured during that period
had short filter-to-foil distances yet there were almost
no AWCs from those groups of filters, not what should be
expected if filter-to-foil distances affected the
formation of AWCs.

     Moreover, Dr. Marple testified that some taunt filters
might not move even if they had a short filter-to-foil
distance.  Further, Dr. Marple found that filter-to-foil
distance and floppiness were not likely to affect the
formation of AWCs because of the overriding affect of the
threshold velocity of the dust on each filter.  The only
basis provided by respondents' experts for the assertion
that filter-to-foil distance affected the probability of
AWCs occurring was "common sense."   CI 4756, 5004,
5273,6222,6831, 7697, and 7897.  To the contrary, if
anything, common sense leads to an opposite conclusion.
Specifically, as noted above, out of the 4,000
measurements of filter-to-foil distance of filters that
were manufactured between October 25, 1990, and February
15, 1992, 50% had short foil-to-filter distances.
However, overall only 2% of cited AWCs came from this
group of filters.  If filter-to-foil distance affects the
occurrence rate of AWCs common sense would dictate that
AWCs would occur at a higher rate than that which
occurred.  The only fact that would explain why the
actual occurrence rate was not at the expected rate is
the institution of the void code.  Consequently, the
judge erred in relying on the  "common sense" theory
posited by respondents' experts.  Using "common sense" is
a laudatory thing to do; however, in these cases, along
with common sense, legal principles must prevail.  The
defendants, rather than using common sense used common
illegality to infect we know not how many miners with
silicosis.

     Moreover, and perhaps most importantly, Rochester and
Pittsburgh's ("R&P") logbooks established that: (1) when
Urling used cassettes from the 300,000 series before
March 26, 1990, approximately 40% (66 of 165) had AWCs;
and (2) when Urling used cassettes from the 300,000
series after March 26, 1990, less than 2% (1 of 59) had
AWCs.  The AWC rate for the cassettes the judge held were
more susceptible to AWC because of manufacturing
anomalies was actually lower than it was for cassettes
manufacture on other dates -- again, the exact opposite
of that expected if manufacturing anomalies accounted for
AWC susceptibility.  The overwhelming evidence
demonstrates that cassettes submitted before March 26,
1990, and manufactured during a nine day period
manifested AWCs at a rate of 25% at Urling and 29% at
other R&P mines while cassettes manufactured during that
same period but submitted after March 26, 1990,
manifested AWCs at a rate of 1% at Rochester and
Pittsburgh mines and 0% at the Urling mine!  Again, the
only fact that would explain this phenomenon is the
institution of the void code and that the offending
companies were caught.  Therefore, the judge's
determination that filter-to-foil distances were likely
factors in the occurrences of AWCs is not supported by
substantial evidence and cannot be sustained.

     5.  The judge's determination that handling variables
affected the AWCs occurrence rate is not supported by
substantial evidence

     The evidence on "handling variables" does not support the
judge's conclusions that the rough handling of the
equipment contributed to the occurrence of AWCs.  The
evidence reflects that only three individuals at R&P's
Environmental Safety Department ("ESD") handled Urling
dust filters -- Messrs. Eget, Houck, and Snyder.  Both
Mr. Eget and Mr. Houck admitted that they did not change
their handling practices immediately after the void code
was instituted.  Although Mr. Snyder testified that he
made a few changes in the manner in which he handled the
sampling units, he could not identify the point in time
at which he made the changes.  However, he stated that he
did not make any changes in the manner in which he
transported the sampling devices until after January
1992, 21 months after the institution of the void code!
Mr. Snyder testified further that he first received
instructions on specific modifications he should make in
his handling practices after January 1992.  Consequently,
no reasonable inference can be drawn from this evidence
to support a finding that "handling variables"
contributed to the precipitous fall in AWCs after the
institution of the void code.  In fact, the evidence
demonstrates that handling practices did not change until
almost two years after the institution of the void code.

     The judge also relies on the fact that Mr. Eget, admittedly
the roughest handler of the sampling devices, was absent
between April 9, 1990 and May 10, 1990.  However, Mr.
Eget handled the devices as roughly after May 10, 1990 as
he had before April 9, 1990.  K 2179, 2362, and 2993.
Consequently, the virtual cessation of AWCs after March
26, 1990, can not be explained by the absence of Mr. Eget
because he continued to handle them in this same manner
until his retirement in January 1992 -- 21 months after
the dramatic decline in the AWCs rate.  The findings by
the judge in this connection are not supported by
substantial evidence and, thus, can not stand.

     6.  The judge's credibility findings in connection with the
ESD personnel can not be sustained.

     Where a judge's credibility determinations are based in
essence not upon the demeanor of the witnesses, but
rather upon an analysis of their testimony and other
record evidence, as here, such determinations are not
entitled to special deference.  Consolidation Coal Co. v.
NLRB, 669 F.2d 482, 488 (7th Cir. 1982).  Further,
material evidence cannot, as the judge did here, be
disregarded or eliminated by the causal expedient of
crediting or discrediting witnesses.  Medline Industries
v. NLRB, 593 F.2d 788, 795 (7th Cir. 1979).  Moreover,
the judge's credibility determinations are based on an
illogical assumption -- that people do not violate the
law because they are aware of criminal and civil
penalties.  As extraordinary as it may seem, this is what
the ALJ said in his opinion speaking of the credibility
of Eget and Houck:

    Both Eget and Houck knew that tampering was illegal.
    Eget at least was aware that such acts could result (and
    had resulted) in criminal sanctions    . . . .  Relying
    on the absence of any adequate motive for tampering, and
    the strong disincentive provided by their knowledge of
    possible sanctions for tampering, I accept as truthful
    the statements of each of them that he did not tamper
    with compliance respirable dust samples submitted to
    MSHA. . . .  I consider these credibility determinations
    to be of overriding importance in this decision.

16 FMSHRC at 902-903 (emphasis added).

Jails are full of people who are "aware that [their] acts could
result (and had resulted) in criminal sanctions."  Id. at 902.
The judge's credibility determinations are not entitled to weight
because he based them on unfounded considerations.  Ona Corp.,
729 F.2d at 719; Omni International Hotels v. NLRB, 606 F.2d 570
573; Breeden, 493 F.2d at 1010; Victor Products Corp v. NLRB.,
208 F.2d 834 839 (D.C. Cir. 1953).  As a result, the judge's
credibility determinations are not legally sustainable.  In my 40
years as a member of the bar I have never come across as
ludicrous a statement as this trial judge made when he said:

    Both Eget and Houck knew that tampering was illegal.
    Eget at least was aware that such acts could result (and
    had resulted) in criminal sanctions    . . . .  Relying
    on the absence of any adequate motive for tampering, and
    the strong disincentive provided by their knowledge of
    possible sanctions for tampering, I accept as truthful
    the statements of each of them that he did not tamper
    with compliance respirable dust samples submitted to
    MSHA. . . .  I consider these credibility determinations
    to be of overriding importance in this decision.

Id. (emphasis added).

    7.  The judge erred in refusing to admit criminal evidence in
the common-issues trial

    In the Secretary's Statement and Introduction to Offers of
Proof Regarding Potential Testimony of Pysher, et al., he offered
evidence of criminal tampering by other operators to demonstrate
that tampering was a quick and easy way to remove dust; that
tampering had occurred; and that tampering was not an isolated
event.  Specifically, the Secretary stated:

        Attached are Offers of Proof with regard to five
    witnesses who have observed or participated in tampering
    with respirable dust samples.  These Offers set forth the
    testimony these witnesses would present if they were
    allowed to testify at trial.

        With respect to the five proposed witnesses, they
    would be expected to testify that deliberate tampering
    and falsification of samples were, in fact, activities
    engaged in by mine operators who submitted AWCs.  These
    witnesses could establish that deliberate behavior was
    used to mislead MSHA or misrepresent the actual level of
    dust concentration at mines and they could describe such
    deliberate acts either in which they participated or
    which they personally observed.  These witnesses could
    testify as to why samples were deliberately altered or
    fraudulently manufactured and they could testify how
    easily such acts were carried out.  These witnesses can
    rebut the operators' experts' testimony of possible or
    speculatively potential causes of AWCs by showing what
    actually did occur at many mines.  This testimony is not
    intended to impute criminal conduct to all operators;
    rather, it is to establish that such behavior was not
    isolated, inconsequential or remote.  This testimony and
    related documentary evidence would prove that deliberate
    tampering is a reasonably likely cause of AWCs and that
    such likelihood must be weighed against the explanations
    offered by the operators in this proceeding.  These
    people participated in or observed deliberate attempts to
    create altered or fraudulent samples at mines which
    submitted more than 400 of the cited AWCs.  Furthermore,
    the testimony and exhibits related to these witnesses
    will corroborate the opinions of Robert Thaxton and Dr.
    Virgil Marple that deliberate behavior created altered
    samples.

Statement and Introduction to Offers of Proof Regarding Potential
Testimony of Pysher, et al.  The excluded criminal evidence was
clearly relevant in the dust cases.  Its probative value was
directly related to the issue of how AWCs could occur and, in
fact, that they had occurred in the past.  In light of the
limited purpose for which the evidence was introduced the
evidence posed little, if any, potential for any prejudicial
impact.  This is particularly so given that these proceedings
were held before a trial judge.

    Because the probative value of the proffered evidence
outweighed any potential prejudicial impact it should have been
admitted.  Respondent complained that the evidence was character
evidence -- i.e. offered to show that mine operators were
predisposed to intentionally tamper because they had done so in
the past.  I reject this assertion even though it is a well known
fact that such was done in the past (and unfortunately continues
from time to time even today).  As set forth above, the evidence
was patently not offered for this purpose.  Further, while the
proffered criminal evidence was also relevant to issues of motive
and opportunity to tamper, evidence submitted for these two
purpose come under the exceptions to the exclusion of character
evidence contained in Rule 404(b).  Thus, submitted for this
limited purpose, the evidence was clearly relevant to the
ultimate question of whether AWCs were more likely than not the
result of intentional conduct.

    Finally, inasmuch as the Secretary specifically stated that
the evidence was not submitted for the purpose of proving that
because one operator tampered the respondents tampered and it was
heard by an experience trial judge, its probative value
outweighed any potential prejudicial effect.  Inasmuch as it was
offered into evidence for this limited purpose, it was improperly
excluded and the judge erred in not considering this evidence.
As such, the judge's decisions are not supported by substantial
evidence because he failed to admit and weigh this probative
evidence.  Wyoming Fuel, 16 FMSHRC at 1627; see also, Mid-
Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994),
citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89
(1951).  As set forth above, a judge must analyze and weigh the
relevant testimony, make appropriate findings, and explain the
reasons for his decision.  Wyoming Fuel, 16 FMSHRC at 1627; Mid-
Continent, 16 FMSHRC at 1222, citing The Anaconda Co., 3 FMSHRC
299, 299-300 (February 1981).  The judge failed to do this and,
as a result, his findings cannot be affirmed.

VI.  Conclusion

    Unfortunately, we can not tell and will never know how many
men and women were infected with black lung disease as a result
of the illegal actions of the company defendants in these cases.
Considering the length of time their illegal actions went on, the
number could well be in the many thousands.  Hopefully, the
Government of the United States will in the end prevail, in spite
of the insensitive majority decision in this case and for
whatever little satisfaction that gives those thousands of people
who have been harmed by the defendants' illegal acts, the right
thing will have been done by them.


                                Marc Lincoln Marks, Commissioner


**FOOTNOTES**

     [1]:   I  wish  to  acknowledge  with  deep appreciation the
extraordinary   professionalism   that  was  shown   during   the
preparation of this dissent by my personal  Counsel,  Christopher
Yost.  In addition, I mention as well, the long hours of  tedious
work  that  were  performed  by the Commission's General Counsel,
Joseph Ferrara and his staff,  particularly,  Elizabeth Ebner and
Beverly Bryce who from the inception of this very  long effort on
the  part  of the Commission, in a most professional manner,  put
before all the  Commissioners involved in this case the necessary
tools to render both its majority and dissenting opinion.  I wish
to acknowledge also  the  hard  work  and  professionalism of the
majority's  Counsel, James Callear, who though  on  the  opposite
side of the issue  from  that  which  I  took,  at  all times was
willing  to  discuss  the issues which were so pertinent  to  the
decision in this case.

     [2]:   A  companion   bill   introduced   in  the  House  of
Representatives  contained  the same provision but  required  the
Secretary of Health, Education,  and  Welfare  to  prescribe  the
formula.   The  House  provision  was  adopted  at Conference and
carried over, without substantive change, to the 1977 Mine Act as
section  205.  Section 205 of the 1977 Mine Act was  subsequently
amended to  transfer this function to the Secretary of Health and
Human Services.

     [3]:   Quartz   is   a   form  of  silica  described  as  "A
crystallized silicon dioxide."   Bureau of Mines, U.S. Department
of the Interior, Dictionary of Mining, Mineral, and Related Terms
884 (1968).

     [4]:   Judge Broderick retired  upon  the  issuance  of  his
decisions in the dust cases.

     [5]:  The  Environmental  Safety Department ("ESD") is where
Rochester and Pittsburgh conducts  its  respirable  dust sampling
program  for the Urling Mine, as well as all other Rochester  and
Pittsburgh mines.

     [6]:    The   judge  appears  to  minimize  the  potency  of
circumstantial evidence in this passage. The Commission has often
relied on such evidence,  particularly  where intentional conduct
is an essential element of the case.  Northwestern Resources Co.,
8 FMSHRC 883, 886 (June 1986); Lizza Industries,  Inc.,  6 FMSHRC
8,  15  (January  1986);  Phelps Dodge Corp., 3 FMSHRC 2508, 2510
(November 1981) rev'd on other  grounds,  709  F.2d 86 (D.C. cir.
1983).   Moreover, direct evidence of intentional  or  deliberate
conduct is  rarely  encountered.  Phelps Dodge Corp., 3 FMSHRC at
2510.  It is entirely  appropriate for a judge to draw reasonable
inferences   of   intentional    or   deliberate   conduct   from
circumstantial   evidence.    Id.    Adding    to   the   judge's
inappropriate belittling of circumstantial evidence, in this case
there were two eyewitnesses to intentional tampering in the mine-
specific trial.  16 FMSHRC at 891 and 892.

    [7]:    See   supra   pages  15-22  and  accompanying   notes
(discussion of the judge's  erroneous formulation and application
of the burden of proof).

    [8]:  R&P is the sole owner  of Keystone, the operator of the
Urling mine.  16 FMSHRC at 858.