Windsor Coal Company

Plain-English summary

Windsor Coal Company operated an underground coal mine where MSHA found extensive combustible coal dust and coal spillage along a belt entry. The Commission considered whether the violation of 30 C.F.R. § 75.400 resulted from Windsor's unwarrantable failure to comply with the standard. It vacated the judge's finding that the violation was not unwarrantable and remanded for further analysis of the condition's duration, Windsor's notice of the need for greater compliance efforts, its abatement efforts, and the danger and obviousness of the accumulations. The decision left the penalty issue for further proceedings.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.400
• Outcome: The Commission vacated the no-unwarrantable-failure finding and remanded for further consideration.
• Key point: The extent of an accumulation is relevant, but the Commission required analysis of duration, notice, abatement efforts, danger, and obviousness before deciding unwarrantable failure.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

               1730 K STREET NW, 6TH FLOOR

                 WASHINGTON, D.C.  20006


                   September 30, 1999

SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket No. WEVA 97-95
:
WINDSOR COAL COMPANY :

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty,
Commissioners

                        DECISION

BY: Jordan, Chairman; Marks, Riley, and Beatty, Commissioners

 This civil penalty proceeding arises under the Federal

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1994) ("Mine Act" or "Act"). At issue is whether substantial
evidence supports Administrative Law Judge George A. Koutras'
determination that a violation by Windsor Coal Company
("Windsor") of 30 C.F.R. § 75.400[1] was not the result of
its unwarrantable failure to comply with the standard. 19
FMSHRC 1694, 1726-28 (Oct. 1997) (ALJ). The Commission
granted the Secretary of Labor's petition for discretionary
review challenging the judge's determination of no
unwarrantable failure. For the reasons that follow, we vacate
the judge's unwarrantable failure determination and remand
for further consideration.

                           I.

            Factual and Procedural Background

 Windsor operates the Windsor Mine, an underground coal

mine near Wheeling, West Virginia. Id. at 1695; W. Post-
Hearing Br. at 2-3. On September 19, 1996, Inspectors Lyle
Tipton and James Jeffers of the Department of Labor's Mine
Safety and Health Administration ("MSHA") completed a four
day inspection of 12 of Windsor Mine's 14 belts, which
measure a total of approximately 14 miles. 19 FMSHRC at
1724-25. Prior to the inspection, Inspector Tipton reviewed
the September 18 to September 19 preshift and onshift reports
for the mine's main No. 10 belt. Id. at 1698, 1725. He
observed entries describing accumulations that were noted as
reported and uncorrected. Id. at 1698. Inspector Tipton then
inspected the No. 10 belt beginning at the belt's conveyor
belt drive, and walked towards the No. 11 belt. Id. Company
representative Jim Fodor and United Mine Workers of America
safety committeeman Bill Cox accompanied Tipton on his
inspection. Id. Tipton observed an "accumulation of
combustible material consisting of float coal dust, . . .
loose coal spillage, spillage of fine dry loose coal and coal
dust in contact with the conveyor belt and bottom roller
structure[.]" Id. at 1697. Tipton's order states that the
"total distance of this 6,000 foot entry containing float coal
dust was 3,600 feet" and that spillage of "coal and fine dry
loose coal was present under the majority of the bottom belt
and in contact with the bottom rollers." Id. The order
indicates that Inspector Tipton observed accumulations of
float coal dust from the belt drive (227 crosscut) to the 260
crosscut; accumulations of loose coal beneath the majority of
the bottom belt and in contact with the bottom rollers;
spillage in contact with rollers and visual signs that a
roller had heated up at the 254 stopping; an 80-foot long,
1-foot wide, and 1-foot deep spillage at the 248 stopping;
a 50-foot long, 1-foot wide, and 1-foot deep spillage at the
268 stopping; a 20-foot long, 3-foot wide, and 2-foot deep
spillage at the 275 stopping; and a 10-foot long, 3-foot wide,
and 2-foot deep spillage at the 276 stopping.[2] Ex. P-3 at 2.
He concluded that the cited conditions "for the most part were
being carried as reported in the mine record books and would
have taken days to accumulate to the degree described in this
action." 19 FMSHRC at 1698. The ensuing abatement effort
took between 15 and 20 miners approximately 10 hours to
complete. Id. at 1724; Tr. 209, 311.

 Based on his observations of the spillages and

accumulations along the No. 10 belt and his review of the
preshift and onshift record books, Tipton issued Order Number
3501233 under section 104(d)(1) of the Mine Act, 30 U.S.C.
§ 814(d)(1), alleging a significant and substantial ("S&S")[3]
violation of 30 C.F.R. § 75.400, and that the violation
resulted from Windsor's unwarrantable failure to comply with
the standard. 19 FMSHRC at 1699; Ex. P-3 at 1. Windsor
contested the order and the matter proceeded to hearing before
Judge Koutras.

The judge concluded that Windsor's uncontested violation

of section 75.400 was S&S, but that it did not result from
the operator's unwarrantable failure to comply with the
standard. 19 FMSHRC at 1716, 1727-28. He found that the
"cited coal accumulations . . . covered a rather extensive
area of the No. 10 belt line." Id. at 1724. However, he
also stated that, "[g]iven the large scope of this mining
operation," which he viewed as a mitigating circumstance, he
could not conclude "that the respondent's compliance record
of ninety-eight section 75.400[] violations over a previous
24-month period[], is indicative of a `special accumulations
problem.'" Id. The judge further stated that he was "not
totally convinced that Inspector Tipton actually knew how
long the cited coal spillage conditions had existed" and that
he was not convinced that the inspector "knew with any degree
[of] reasonable certainty that the preshift entries that he
reviewed prior to his inspection described the same spillage
conditions at the same location that he observed during his
inspection." Id. at 1725. Finally, the judge found that,
"while it may be true that all of the cited coal accumulations
may not have been cleaned up at the time of the September 19,
1996, inspection, . . . some of the conditions were corrected,
and work was in progress to correct the remaining conditions."
Id. at 1727 (emphasis in original). He assessed a penalty of
$1,000. Id. at 1729.

                           II.

                       Disposition

 The Secretary asserts that the total coal accumulation -

loose coal spillage at the stopping locations noted in the
order and coal dust and float coal dust covering over half of
the length of the No. 10 belt - was extensive, and that this
violation's extensiveness alone is sufficient to support an
unwarrantable failure finding. PDR at 8-10.[4] She also
contends that a review of Windsor's preshift and onshift
reports shows that accumulations were present for at least an
entire shift, and that the violation thus existed for a
significant period of time. Id. at 10-13. She submits that
the conditions reported in the preshift and onshift reports
and Windsor's 98 section 75.400 violations in the preceding
2 years put the operator on notice of an accumulations
problem at the mine. Id. at 13, 16-17. The Secretary
maintains that the judge's reasons for discounting Windsor's
history of previous accumulation violations lack merit and
are inconsistent with Commission case law. Id. at 13-16.
She argues that Windsor's failure to clean up a dangerous
condition exhibits "aggravated conduct." Id. at 17-19. Finally,
the Secretary asserts that Windsor's efforts to correct the
violative condition were incomplete and ineffective. Id. at
19-21.

 Windsor responds that the judge's determination that the

section 75.400 violation was not the result of Windsor's
unwarrantable failure is supported by substantial evidence.
W. Br. at 17.[5] The operator argues that the judge correctly
considered all relevant factors, rather than making the
extensiveness of the violation determinative. Id. at 8. The
operator further contends that a failure to entirely eliminate
a reported condition within a shift does not mandate an
unwarrantable failure finding and that, in any event, not all
the violative conditions had existed for a full shift before
the inspector arrived. Id. at 9-10. Windsor submits that its
efforts to comply with section 75.400, undertaken despite two
roof falls which hindered its ability to abate, and its
assignment of six miners to clean and rock dust along the No.
10 belt prior to the inspector's arrival, show that it did not
ignore the belt conditions. Id. at 10-13. Windsor also asserts
that the relatively large size of the Windsor mine; its recall
of approximately 25 miners in 1996; the decrease in number of
accumulation violations in the months prior to the instant
order's issuance; and the fact that the Secretary designated
only two of the 98 accumulation violations over the previous
two years as unwarrantable, all support the judge's conclusion
that Windsor was not on notice of a special accumulations
problem. Id. at 13-15. The operator also maintains that,
even if it was on notice of an accumulations problem, it took
measures to correct that problem. Id. at 15. Finally, the
operator contends that it did not fail to address a dangerous
condition, and that the existence of a dangerous condition
alone does not establish unwarrantable failure. Id. at 15-16.

 The unwarrantable failure terminology is taken from

section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to
more serious conduct by an operator in connection with a
violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987),
the Commission determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence.
Id. at 2001. Unwarrantable failure is characterized by such
conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable care." Id. at
2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194
(Feb. 1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d
133, 136 (7th Cir. 1995) (approving Commission's unwarrantable
failure test). The Commission has recognized that a number of
factors are relevant in determining whether a violation is the
result of an operator's unwarrantable failure, such as the
extensiveness of the violative condition, the length of time
that the violative condition has existed, the operator's
efforts to eliminate the violative condition, and whether an
operator has been placed on notice that greater efforts are
necessary for compliance. Mullins & Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
(Aug. 1992). The Commission also considers whether the
violative condition is obvious, or poses a high degree of
danger. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug.
1992) (finding unwarrantable failure where unsaddled beams
"presented a danger" to miners entering area); Warren Steen
Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding
violation aggravated and unwarrantable based on "common
knowledge that power lines are hazardous, and . . . that
precautions are required when working near power lines with
heavy equipment"); Quinland Coals, Inc., 10 FMSHRC 705, 709
(June 1988) (finding unwarrantable failure where roof
conditions were "highly dangerous"); Kitt Energy Corp., 6
FMSHRC 1596, 1603 (July 1984) (conspicuous nature of the
violative condition supports unwarrantable failure finding).

 A.   Extensiveness

 Windsor does not dispute that the cited accumulations

were extensive (W. Br. at 7-8), and we affirm the judge's
finding in this regard. Although the extensiveness of these
accumulations merits significant consideration, we decline
the Secretary's invitation to reverse the judge's finding of
no unwarrantable failure based solely on the extensiveness
of the violation. PDR at 10. The Seventh Circuit's
decision in Buck Creek, 52 F.3d 133, relied on by the
Secretary, does not stand for the proposition that an
unwarrantable failure finding can be based solely on a
finding that the violation was extensive. In affirming an
administrative law judge's unwarrantable failure finding,
the Buck Creek court found that, in addition to the
accumulation's extensiveness, the violation had existed for
at least one shift, the operator had undertaken no abatement
efforts during the 90 minutes after the accumulation
appeared in the preshift book on the day of the order, and
the operator had received nine section 75.400 citations in
the same month, including one citation for the cited area.
Id. at 136. The court stated that, "contrary to Buck
Creek's suggestion, the extent of accumulation was not the
sole basis for the ALJ's decision." Id. Therefore,
although we affirm the judge's finding that the violation
was extensive, a determination of whether Windsor's
violation was unwarrantable requires analysis of the other
pertinent factors enunciated in Commission precedent. See,
e.g., Mullins, 16 FMSHRC at 195.

 B.   Duration

 The judge rendered no explicit determination regarding

the duration of the cited accumulations. See 19 FMSHRC at
1725. Nonetheless, the preshift and onshift reports compel a
finding that at least two of the cited accumulations had
existed for at least one shift. The preshift reports identify
accumulations that needed cleaning or dusting by the crosscut
where each accumulation was located. Ex. P-1. The preshift
report for the September 19 midnight shift reflects that the
area between crosscuts 227 and 253 needed dusting and that the
area between crosscuts 230 and 257, under the rollers, needed
cleaning. Id. The September 19 midnight shift onshift report
does not indicate that these reported accumulations had been
cleaned or dusted. Id. Belt coordinator Wayne Porter testified
that an onshift report which shows no correction of an
accumulation indicates that the accumulation was not abated.
Tr. 313, 334. Windsor's work assignment sheets indicate that
the accumulation between crosscuts 227 and 253 was worked on,
but not finished. Ex. R-17. The September 19 day shift preshift
report states that the same areas noted on the midnight shift
preshift report still needed cleaning or dusting, although the
notation on the day shift preshift report does not specify
whether the accumulation between crosscuts 230 and 257 was under
the rollers or on the side of the belt. Ex. P-1. While Windsor
observes that the length of the cited accumulation beneath the
belt is somewhat greater than the distance of the same
accumulations reflected in the preshift books (W. Br. at 10 n.4),
the operator does not dispute that the accumulation between
crosscuts 227 and 253 had been present for at least one shift.
Id. at Attach. A (stating that the shift report notation that
"253 to drive -- needs dusted [sic] . . . first appears in the
preshift examiner's report for the midnight shift on September
19, 1996") (boldface in original). Windsor explains that it
gave a work assignment for the September 19 midnight shift to
dust between crosscuts 227 and 253, which was not finished.
Id. at 10 & Attach. A (citing Ex. R-17).

 The record also compels a finding that the spillage on

the left side of stopping 276 existed for longer than one
shift. The September 19 midnight preshift report lists an
accumulation on both sides of stopping 276 which needed
cleaning. Ex. P-1. While the September 19 midnight onshift
report states that the right side of stopping 276 was cleaned,
the left side of stopping 276 still needed cleaning by the
time the day preshift report was written. Id. Windsor does
not dispute that this spillage had existed for longer than
one shift. W. Br. at Attach. A at No. 4 ("The first entry
specifically referencing the walkway at cross-cut 276 is in
the preshift exam for the midnight shift on September 19
. . . ."). While the order does not specify at which side
of stopping 276 Tipton observed the cited spillage, the shift
reports demonstrate that an accumulation on the left side of
stopping 276 existed for one shift prior to the order's
entry.

 In reviewing the whole record, an appellate tribunal must

consider anything in the record that "fairly detracts" from
the weight of the evidence that supports a challenged finding.
Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).[6]
The evidence discussed above establishes that an accumulation
and a spillage of coal existed for longer than one shift and
"fairly detracts" from the judge's negative unwarrantable
failure finding. Id.; see also Buck Creek, 52 F.3d at 136
(finding unwarrantable failure where cited accumulation must
have been present since at least previous shift); Old Ben Coal
Co., 1 FMSHRC 1954, 1959 (Dec. 1979) (finding unwarrantable
failure where accumulation had existed for less than one shift).
Because the record compels a finding that these two accumulations
existed for more than one shift, we need not remand the issue
of the duration of these accumulations to the judge. See
American Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993)
(remand unnecessary where judge's reconsideration of issue would
serve no purpose).

 In addition to this type of direct evidence, the Commission

has permitted duration to be established through the use of
circumstantial evidence. See, e.g., Enlow Fork Mining Co., 19
FMSHRC 5, 16 (Jan. 1997) (affirming judge's duration finding,
which was based on judge's "credit[ing of] the inspector's
testimony that the accumulations had existed for more than one
shift"); Mullins, 16 FMSHRC at 196 (determining that cited
accumulation had existed for at least two days based, inter alia,
on the inspector's testimony as to the "quantity and nature of
the accumulations"); Peabody, 14 FMSHRC at 1261-62 (affirming
judge's duration finding which was based on inspector's
observation of cited area). Here, Inspector Tipton asserted
that, based on his experience and observations, all the cited
accumulations took days to accumulate. Tr. 45, 52, 108, 116-17;
Ex. P-3. Tipton also testified that the shift books supported
his opinion that the cited accumulations had been present for
several days (Tr. 108-09, 117), and that it was not possible that
the accumulations he observed had amassed in one shift. Tr. 45.
It is not evident from the judge's decision whether he analyzed
this testimony of Inspector Tipton regarding duration.[7] In
accordance with Commission precedent, he should do so explicitly
on remand.

 The dissent claims that the judge's statement that he was

not convinced "Inspector Tipton actually knew how long the cited
coal spillage conditions had existed" (19 FMSHRC at 1725
(emphasis added)) served to discredit Inspector Tipton's
testimony as to duration. Slip op. at 16. In fact, Inspector
Tipton never testified that he "actually knew" the duration of
the violation, nor was such testimony necessary because the
Commission does not require an inspector to possess "actual
knowledge" of the duration of a violation. See, e.g., Mullins,
16 FMSHRC at 196. It is not clear to us what the judge meant
when he ruled that he was "not totally convinced . . . Inspector
Tipton actually knew how long the cited coal spillage conditions
had existed." 20 FMSHRC at 1725 (emphasis added). We therefore
remand for a more complete explanation of the analysis of the
circumstantial evidence regarding duration, including a clearer
evaluation of the inspector's testimony, in a manner consistent
with Commission precedent. See Enlow Fork, 19 FMSHRC at 16;
Mullins, 16 FMSHRC at 196; Peabody, 14 FMSHRC at 1261-62.

 Furthermore, the judge should have analyzed the testimony of

Cox and longwall helper Jimmy Welch, both of whom corroborated
Tipton's opinion as to the duration of the accumulation. Tr.
144, 178-79, 187. Cox testified that the fines accumulated
"[o]ver a period of shifts," (Tr. 141) and Welch stated that the
accumulation would have developed over "a few shifts." Tr. 187.
Also, while the judge paraphrased the testimony of Porter that
accumulations under the belt can occur in a short period of time
(Tr. 345-46), and quoted Welch's opinion that the accumulations
under the belt occurred "just coming back on the take-up; coming
back on the bottom rollers" (Tr. 184), he did not credit or
discredit this testimony, nor did he reconcile Porter's testimony
with the contrary assertions of Tipton, Cox, and Welch. See 20
FMSHRC at 1725; Tr. 45, 141, 187, 313. Finally, the judge should
have analyzed Tipton's testimony that he observed rock dust
beneath some of the cited accumulations. Tr. 31, 219. Tipton
testified that the presence of rock dust beneath accumulations is
evidence that the coal spillage was not recent. Tr. 218. The
judge should have analyzed the abundant circumstantial evidence
that the cited accumulations had existed for longer than one
shift.

 In sum, we conclude that the record compels the conclusion

that the accumulation from crosscut 227 to 257 and the spillage
at crosscut 276 existed for longer than one shift, and we remand
for consideration and analysis of evidence relevant to a
determination of how long the other cited accumulations existed,
and whether the duration of these accumulations, together with
the other unwarrantable factors, is sufficient to support an
unwarrantable failure finding.

 C.   Notice of Need for Greater Efforts For Compliance

 The judge's finding that Windsor was not on notice that

greater efforts were necessary for compliance with section 75.400
is not supported by substantial evidence because it fails to
account for annotations in the preshift books for the No. 10 belt
reflecting that coal accumulated along the belt, and that some of
the reported accumulations remained for several shifts without
abatement. For example, the preshift reports for the September
16 midnight shift through the September 18 day shift establish
that the No. 10 belt between crosscuts 241-249 and between
crosscuts 257-278 needed cleaning and dusting over a span of at
least five shifts. Ex. P-1. Also, an accumulation between
crosscuts 274 and 287 which was noted in the September 17
midnight preshift report was worked on once during the September
17 day shift, but was not corrected until the September 18 day
shift. Id. As we have previously held, shift book reports of
accumulations are "relevant in demonstrating that [the operator]
had prior notice that a problem with coal . . . accumulations in
the cited area, and that greater efforts were necessary to assure
compliance with section 75.400." Peabody, 14 FMSHRC at 1262.
Accordingly, we remand for an evaluation of this evidence
relevant to whether Windsor was on notice.

 In addition, we are troubled by the judge's suggestion that

98 section 75.400 citations in a 2-year period was not enough to
place Windsor on notice of a greater need for compliance. The
problem with this conclusion, however, is that it appears to
assume that all 14 miles of the belt lines were either being
constantly monitored, or being inspected by MSHA each week, facts
that are not in evidence here. We are concerned by the reliance
of the judge solely on the length of the belt lines to conclude
that such a high number of violations during this time period did
not put Windsor on notice of an accumulations problem. On
remand, we direct that all the record evidence concerning
accumulation problems at the Windsor mine be considered to
determine whether Windsor was on notice that it had a
recurring safety problem in need of correction. See Peabody,
14 FMSHRC at 1263-64 ("A history of similar violations at a
mine may put an operator on notice that it has a recurring
safety problem in need of correction.").[8]

 D.   Efforts to Eliminate the Violative Conditions

 The judge described various efforts undertaken by Windsor

to correct belt conditions on the No. 8, 9, and 10 belts between
September 3 and the September 19 inspection of the No. 10 belt.
19 FMSHRC at 1726-27. Some evidence in the record supports the
judge's factual findings.

 The shift reports for the days preceding the September 19

order reflect that Windsor corrected reported accumulations
between crosscuts 274 and 287, 269 and 272, 262 and 270, 238 and
271, and 260 and 282, at crosscuts 276 and 278, and the belt
tail, as well as a spillage at the belt drive. Ex. P-1. Windsor
superintendent Joseph Matkovich testified that during "the three
days previous to the [19th], nine of our belt lines were walked
by Mr. Tipton and Mr. Jeffers, and any of the items that they
found . . ., we had to direct people in those directions and
follow up on everything that was pointed out to us there." Tr.

250. Windsor also introduced evidence of two roof falls which
     hindered abatement efforts, and required belt employees to work
     to repair the roof. Tr. 249-50, 257, 260-62, 296-99, 300. The
     record further shows that six miners were assigned to correct
     various conditions along the No. 10 belt during the September 18
     day shift and the September 19 midnight shift - although those
     assignments are listed on the work assignment sheet as
     incomplete. Tr. 321-22; Exs. R-16, R-17. Thus, the record
     contains evidence of Windsor's abatement efforts on the No. 10
     belt and elsewhere in the mine prior to the order's issuance.

     We nevertheless conclude that the judge erred in failing to
     determine whether Windsor's abatement efforts were adequate in
     light of the extensive accumulations that existed prior to the
     inspection. Id. In Peabody, we held that the operator did not
     take adequate measures to remedy the spilling problems where the
     cited accumulation was extensive. Peabody, 14 FMSHRC at 1261,
     1263-64; see also Jim Walter Resources, Inc., 19 FMSHRC 480, 489
     (Mar. 1997) (stating that the operator's abatement efforts "were
     inadequate because extensive combustible materials were still
     allowed to accumulate").[9] Here, the evidence is undisputed
     that an extensive area of accumulation was present in the areas
     cited by Tipton. See 19 FMSHRC at 1724.

     Porter testified that Windsor employs four belt workers per
     shift on each of the mine's two sides, and assigned six miners to
     clean accumulations along the belt for the two shifts prior to
     the order's issuance. Tr. 315; Exs. R-16, R-17. Charles Kellam,
     Windsor's human resources manager, testified that Windsor
     employed approximately 140 workers underground. Tr. 221, 224.
     The judge should have discussed whether, considering the
     accumulations along the No. 10 belt, Windsor placed sufficient
     priority on abating the condition by assigning four or six miners
     per shift to the No. 10 belt.

     The judge also failed to address Tipton's testimony
     regarding the four miners he observed rock dusting on top of the
     accumulations. Tipton testified that manually spreading stripes
     of rock dust several feet apart on top of accumulations - as the
     four miners he observed during his inspection were doing - is not
     an effective method of abatement. Tr. 40-41. Tipton elaborated
     that effective abatement would require the operator to shovel the
     accumulations away from the rollers before the area is rock
     dusted. Tr. 41. In Mullins, we held that rock dusting is not an
     alternative method of complying with the clean-up requirements of
     section 75.400. 16 FMSHRC at 197. Thus, the judge's
     consideration of miners rock dusting on top of accumulations as
     abating the operator's accumulation violation contravenes our
     precedent and constitutes error.

     In sum, we remand for consideration of evidence concerning
     whether Windsor's abatement efforts were adequate under the
     circumstances. See Peabody, 14 FMSHRC at 1263-64.

     E. Danger and Obviousness

     The Commission has relied upon the obviousness of, and the
     high degree of danger posed by, a violation to support an
     unwarrantable failure finding. See Jim Walter Resources, Inc., 19
     FMSHRC 1377, 1379 (Aug. 1997) (in remanding whether accumulation
     violation resulted from unwarrantable failure, Commission
     directed judge to consider, inter alia, whether the condition
     posed a high degree of danger); Jim Walter, 19 FMSHRC at 486-89
     (obviousness of accumulation supports unwarrantable finding);
     Drummond Co., 13 FMSHRC 1362, 1365, 1368-69 (Sept. 1991) (visible
     nature of accumulations and evidence of belt running in
     accumulations relevant to unwarrantable failure determination).

     There is record evidence in this case that indicates the
     accumulations here were dangerously high. While the operator
     introduced testimony that there were no hazardous conditions
     along the No. 10 belt (Tr. 267, 326, 331), several witnesses
     testified to observing coal in contact with rollers on the No. 10
     belt on September 19. Tipton testified that "[t]he fines under
     the belt were in contact with the bottom rollers . . . . The
     spillage along the belt would be in contact with the ends of the
     bottom rollers." Tr. 30. Tipton further testified that "some of
     this spillage had been ground up by the bottom rollers" (Tr. 27)
     and that "[with r]egular maintenance, you would have had those
     [accumulations] shoveled away from there long before they had
     built up to where they were in contact with the bottom belt and
     bottom rollers." Tr. 46. Cox testified that rollers "were
     frozen from fine coal being packed around them[.]" Tr. 142.
     Welch also testified that accumulations under the belt were in
     contact with the bottom rollers. Tr. 184, 186.

     Belts or rollers running in a coal accumulation present an
     ignition source. Amax Coal Co., 19 FMSHRC 846, 849, 851 (May
     1997); Tr. 38 (Tipton testifying that there was enough
     accumulated coal on the No. 10 belt to propagate a fire). We
     have recognized that "ignitions and explosions are major causes
     of death and injury to miners." Black Diamond Coal Mining Co., 7
     FMSHRC 1117, 1120 (Aug. 1985). Moreover, two weeks prior to the
     inspection, Kellam and Cox observed evidence of a coal fire
     caused by a roller rolling in coal accumulations beneath the No.
     10 belt. Tr. 140, 175, 239. On remand, we direct the judge to
     determine whether any of the cited accumulations were in contact
     with belt rollers and, if so, whether this supports an
     unwarrantability finding.

     In addition, the Secretary asserts that the extensive
     accumulations were in conspicuous locations. S. Br. at 10 n.9.
     The judge should also have addressed whether the accumulations
     were obvious. See Jim Walter, 19 FMSHRC at 486; Quinland, 10
     FMSHRC at 709. On remand, we direct that this factor be analyzed
     as well.[10]

     In sum, we remand for consideration of the possible danger
     presented by the coal accumulations in contact with rollers as
     well as the obviousness of the accumulations at issue.[11]

                           III.
     
                        Conclusion
     

     For the foregoing reasons, we vacate the judge's
     determination that Windsor's violation of section 75.400 was not
     the result of its unwarrantable failure, and remand to the Chief
     Administrative Law Judge for reassignment,[12] further analysis
     consistent with this opinion, and reassessment of the civil
     penalty, if appropriate.

                         Mary Lu Jordan, Chairman
     
                         Marc Lincoln Marks, Commissioner
     
                         James C. Riley, Commissioner
     
                         Robert H. Beatty, Jr., Commissioner
     

FOOTNOTES

 [1]: Section 75.400 provides, in pertinent part: "Coal

dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active
workings . . . ." 30 C.F.R. § 75.400.

 [2]: Inspector Tipton observed and cited two types of

accumulations: several individual areas of coal spillage, and
float coal dust accumulations beneath the belt, which he
termed coal "fines." Ex. P-3 at 1; Tr. 26-28. Fines accumulate
when wet coal particles stick to the belt and subsequently dry
and fall beneath the belt. Tr. 143.

 [3]: The S&S terminology is taken from section 104(d)(1)

of the Mine Act, 30 U.S.C. § 814(d)(1), which distinguishes
as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a . . .
mine safety or health hazard."

 [4]: Pursuant to Commission Procedural Rule 75(a), 29 C.F.R.

§ 2700.75(a), the Secretary designated her PDR as her brief.

 [5]: Windsor does not contest the judge's S&S designation.

W. Br. at 1; 19 FMSHRC at 1716, 1728.

 [6]: When reviewing an administrative law judge's factual

determinations, the Commission is bound by the terms of the
Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "`such
relevant evidence as a reasonable mind might accept as adequate
to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

 [7]: Commission Procedural Rule  69(a) requires that a

Commission judge's decision "include all findings of fact
and conclusions of law, and the reasons or bases for them,
on all the material issues of fact, law or discretion presented
by the record." 29 C.F.R. § 2700.69(a). See also
Mid-Continent Resources, Inc., 16 FMSHRC 1218, 1222 (June
1994). As the D.C. Circuit has emphasized, "[p]erhaps the
most essential purpose served by the requirement of an
articulated decision is the facilitation of judicial
review." Harborlite Corp. v. ICC, 613 F.2d 1088, 1092 (D.C.
Cir. 1979). Without findings of fact and some justification
for the conclusions reached by a judge, the Commission cannot
perform its review function effectively. Anaconda Co.,
3 FMSHRC 299, 299-300 (Feb. 1981). The Commission thus has
held that a judge must analyze and weigh all probative
record evidence, make appropriate findings, and explain
the reasons for his decision. See Mid-Continent Resources,
16 FMSHRC at 1222.

 [8]: Commissioner Marks concludes that the 98 section

75.400 violations that Windsor incurred in the 2-year
period preceding the subject order placed Windsor on notice,
as a matter of law, that it had a problem with accumulations
at its mine. It is beyond doubt that this extremely large
number of section 75.400 violations put Windsor on notice
that it had a recurring safety problem in need of
correction. See Peabody, 14 FMSHRC at 1263-64.

 [9]: Contrary to the dissent's suggestion, our holding

here does not imply that any efforts to comply by an
operator are irrelevant if a violation ultimately is
found. Slip op. at 17 n.7. Rather, in addressing the question
of compliance efforts, we ask simply whether the operator's
efforts to comply with safety standards and to correct
conditions that could lead to violations were taken with
sufficient care under the circumstances, even if ultimately
unsuccessful in completely preventing a violative condition.
See Utah Power & Light Co., 11 FMSHRC 1926, 1933 (Oct. 1989).

 [10]: Our dissenting colleague's contention that our

approach is inconsistent with our decision in Lafarge Constr.
Materials, 20 FMSHRC 1140, 1145-48 (Oct. 1998) misses the mark
on two counts. First, in Lafarge, rather than upholding an
unwarrantability finding on the sole basis of the danger
factor, as the dissent claims (slip op. at 17), we acknowledged
that the judge's decision also reflected his view that the
violation was obvious. 20 FMSHRC at 1147. In addition,
we found that the operator's failure to recognize the danger
presented by loose overhead rock and its failure to
undertake adequate safety measures reflected a serious
lack of reasonable care and supported an unwarrantability
finding. Id. at 1146-47. Second, our substantial evidence
analysis here does not resemble "heightened scrutiny," as
the dissent claims (slip op. at 18), but rather is faithful
to our holding in LaFarge that "only those factors that are
relevant to the facts of this case" should be applied. Lafarge,
20 FMSHRC at 1147. Thus, while our analysis in Lafarge focused
substantially on the danger element because that element
was highly salient under the facts of that case, our analysis
in the present matter focuses on extent, duration,
notice, abatement, danger and obviousness because these
factors are relevant to the facts of this case.

 [11]:  Commissioner Beatty notes that Commissioner

Verheggen also argues, citing Lafarge Construction and
Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999), petition for
review docketed, No. 99-2264 (4th Cir. Sept. 23, 1999),
that the majority has "failed to consider exculpatory
evidence . . . that was clearly relevant to determining the
operator's degree of negligence." Slip op. at 18. Commissioner
Beatty believes that this statement is flawed for two reasons.
First, he notes that in Lafarge the Commission reaffirmed its
well-established case law concerning the factors that are
relevant in determining whether a particular violation is the
result of unwarrantable failure on the part of the operator.
Second, Commissioner Beatty notes that in Capitol Cement, the
only evidence that the majority arguably "failed to consider"
was that concerning safety training previously provided to
miners which the operator attempted to introduce into the
unwarrantable failure analysis through application of the
Nacco defense. In Capitol Cement, the Commission specifically
affirmed its established precedent that the extensiveness of
the violative condition, which would include the number of p
ersons exposed to resulting harm or injury, is relevant and
entitled to consideration in determining whether a violation
is the result of an operator's unwarrantable failure. 21
FMSHRC at 891. While respecting Commissioner Verheggen's
position on these matters, Commissioner Beatty takes issue
with his colleague's suggestion that we "pick and choose
among the facts of a case for what might be relevant to
upholding a certain view." Slip op. at 18. To the contrary,
he firmly believes that the rulings of the Commission
majority in these cases are the product of a well-
reasoned analysis predicated entirely on existing Commission
case law with respect to the factors to be utilized and
the evidence that is relevant in the unwarrantable failure
analysis.

 [12]:  Judge Koutras has retired.


 Commissioner Verheggen, dissenting:

 I find that substantial evidence supports the judge's

finding that Windsor's violation of section 75.400 was not
the result of its unwarrantable failure. I would affirm his
decision, and therefore respectfully dissent.

 The record contains ample evidence, much of which the

majority acknowledges, to support the judge's decision.[1]
In his consideration of the various factors analyzed to
determine whether an operator's conduct is unwarrantable,
the judge made key findings that Windsor was not on notice
that greater efforts were necessary for compliance, and that
the company had undertaken extensive measures to eliminate
the violative condition. These key findings led the judge
to conclude that Windsor's conduct was not aggravated.[2]
19 FMSHRC at 1724-1727. Both findings are supported by
substantial evidence.

  The judge found that, given the mine's extensive 14-mile

belt system, Windsor's 98 section 75.400 violations in the
prior 24-month period were not sufficient to place Windsor on
notice of any greater need for compliance. Id. at 1724-25.
The majority expresses concern over "the reliance of the judge
. . . solely on the length of the belt lines to conclude that
[Windsor's accumulations] violations during [the relevant]
time period did not put Windsor on notice of an accumulations
problem." Slip op. at 8. The length of the belt lines is not,
however, the sole piece of record evidence that supports the
judge's conclusion. The majority fails to mention Windsor's
improved compliance with section 75.400 in the months prior
to the issuance of the citations, which I find further supports
the judge's conclusion that Windsor was not on notice that
greater compliance efforts were needed. MSHA's Assessed
Violation History Report for the Windsor Mine reflects a marked
improvement in compliance with section 75.400 for July through
September 1996. See Ex. P-12. That report shows that Windsor
was received only five section 75.400 violations in that
period, a quarterly number comparable to that of a nearby mine
that MSHA Inspector Tipton testified had "one of our best
compliance records on 75.400 of any of our local mines."
Tr. 351; see Tr. 347, 350; Ex. P-12.

 Windsor's improvement in compliance is analogous to that

of the operator's compliance with the dust standard involved
in Peabody Coal Co., 18 FMSHRC 494 (Apr. 1996). In Peabody,
the Commission noted that the operator had been in compliance
with the applicable dust standard for the several months
preceding issuance of the citation at issue, and concluded
that the operator's "remedial measures clearly demonstrate a
good faith, reasonable belief that it was taking the steps
necessary to solve its dust problems." Id. at 499. Here, the
significant decrease in the incidence of section 75.400
violations at the Windsor Mine shows that the company had
substantially alleviated the extent of the accumulation
problems it may previously have had along its belts, and
further supports the judge's finding that the operator was not
on notice of a special accumulations problem necessitating
greater efforts for compliance with section 75.400.

 Regarding abatement efforts, the judge describes at some

length Windsor's efforts to address belt conditions at the
mine prior to the September 19 inspection of the No. 10 belt,
findings which are amply supported by the record. On September
3, 1996, a union "safety run" was performed on the No. 8, 9,
and 10 belts in response to the safety committee's letter
concerning the condition of these belts. 19 FMSHRC at 1703-04,
1708; Tr. 148, 197-98; Ex. P-10. After that, Windsor employees
Matkovich and Cox met daily to discuss work that needed to be
finished on the belts up until the day the order was issued.
19 FMSHRC at 1704, 1709-10, 1726; Tr. 151, 203-04. The meetings
specifically addressed the No. 10 belt, resulting in corrective
action, including cleaning and rock dusting, that continued up
until September 19. 19 FMSHRC at 1726; Tr. 151-152; Ex. P-10.
The letter which prompted the safety run was later rescinded.
19 FMSHRC at 1726; Tr. 197. As my colleagues themselves
acknowledge:

           The shift reports for the days preceding
      the September 19 order reflect that Windsor
      corrected reported accumulations between
      crosscuts 274 and 287, 269 and 272, 262 and
      270, 238 and 271, and 260 and 282, at
      crosscuts 276 and 278, and the belt tail, as
      well as a spillage at the belt drive.  Ex. P-
      1.  Windsor superintendent Joseph Matkovich
      testified that during "the three days
      previous to the [19th], nine of our belt
      lines were walked by Mr. Tipton and Mr.
      Jeffers, and any of the items that they found
      along those belt lines, we had to direct
      people in those directions and follow up on
      everything that was pointed out to us there."
      Tr. 250.  Windsor also introduced evidence of
      two roof falls which hindered abatement
      efforts, and required belt employees to work
      to repair the roof.  Tr. 249-50, 260-62, 257,
      296-99, 300.

Slip op. at 9 (alteration in original).

 My colleagues further acknowledge that six miners were

assigned to correct various conditions along the No. 10 belt
during the afternoon shift on September 18 and the midnight
shift on September 19. Id. The record also shows that four
miners were spreading rock dust manually at the time the
inspector arrived. Tr. 35, 321-22; Exs. R-16, R-17. Finally,
as the judge noted, a bulk duster assigned to dust along the
No. 10 belt never arrived due to its derailment. 19 FMSHRC
at 1727; Tr. 278-79, 318; Ex. R-19.[3] Thus, the record
contains abundant evidence supportive of the judge's finding
and shows that Windsor undertook a variety of abatement
efforts on the No. 10 belt and elsewhere in the mine.

 Based on the judge's findings as to Windsor's lack of

notice and their abatement efforts, both of which have ample
record support, I find that a reasonable trier of fact could
conclude that the Secretary failed to meet her burden in
proving Windsor engaged in aggravated conduct.[4] Put another
way, given Windsor's continuing improvement in compliance
with section 75.400 and the company's considerable and ongoing
corrective action, it was not unreasonable for the judge to
conclude that Windsor did not exhibit reckless disregard,
indifference, or a serious lack of reasonable care[5] with
respect to the accumulations on the No. 10 belt.

 My colleagues, however, subject the judge's opinion to the

most exacting and detailed scrutiny, then ascribe to him a
variety of errors. Their exercise in faultfinding is without
merit. First, my colleagues criticize the judge for failing to
"analyze" various pieces of evidence in the record, evidence that
both tends to support and contradict the judge's decision. See,
e.g., slip op. at 7-8, 10. In general, I believe this criticism
is misplaced. I agree with my colleagues that a judge must
render "a decision that constitutes [a] final disposition of the
proceedings," and that his or her decision must be "in writing"
and must include "all findings of fact and conclusions of law,
and the reasons or bases for them, on all material issues of
fact, law or discretion presented by the record." 29 C.F.R.
§ 2700.69(a); see slip op. at 7 n.7. But it does not follow from
this that a judge must discuss each and every bit of evidence -
in a case such as this, the judge need not make an explicit
finding in his opinion with respect to every piece of evidence or
every aspect of the testimony of every witness. He need only
make findings necessary to support his decision, and explain his
reasons therefor. Here, the judge has done so.

 More importantly, the judge did in fact analyze much of the

contrary evidence the majority claims he ignored. For example,
although the majority states that it is not clear whether the
judge analyzed circumstantial evidence regarding the duration of
the accumulation[6] (slip op. at 7), in fact, he did consider
this evidence - and essentially discredited the Secretary's key
witness, Tipton. 19 FMSHRC at 1725; see also id. at 1698-1702,
1704, 1706, 1719-21 (points in judge's decision where he
discusses at some length the evidence adduced by the Secretary on
the duration of the accumulation). The judge specifically found
that he was not convinced that "Inspector Tipton actually knew
how long the cited coal spillage conditions had existed." 19
FMSHRC at 1725. This is as close as a judge can get to
discrediting a witness's testimony without being explicit, and we
have found implied credibility determinations where judges have
said far less. See Fort Scott Fertilizer-Cullor, Inc., 19 FMSHRC
1511, 1516 (Sept. 1997) (recognizing implicit credibility finding
of judge); Sunny Ridge Mining Co., 19 FMSHRC 254, 261, 265, 267
(Feb. 1997) (same).

 The majority also concludes that "the judge erred in failing

to determine whether Windsor's abatement efforts were adequate in
light of the extensive accumulations that existed prior to the
inspection." Slip op. at 9. I regard this statement as
something of a legal non sequitur. Of course Windsor's efforts
were not "adequate" - had they been, there would have been no
violation. The question is rather whether Windsor's efforts were
so inadequate that the company's conduct rose to a reckless,
aggravated level of negligence. The judge concluded they were
not, and substantial evidence supports this conclusion.

 Moreover, contrary to the majority's assertion that the

judge failed "to determine whether Windsor's abatement efforts
were adequate" (slip op. at 9), the judge did, in fact, analyze
the operator's efforts. Any fair reading of the judge's opinion,
given his extensive description of Windsor's efforts to address
and correct the cited conditions, followed immediately by his
conclusion that Windsor's conduct was not aggravated (19 FMSHRC
at 1726-1727), leads to the conclusion that he found Windsor's
efforts not so inadequate that the company's conduct rose to a
reckless, aggravated level of negligence:

      On the facts of the case at hand, while it
      may be true that all of the cited coal
      accumulations may not have been cleaned up at
      the time of the September 19, 1996,
      inspection, the respondent's credible
      evidence establishes that the belt conditions
      were not ignored and that the men were
      assigned to take corrective action, men were
      working rock-dusting the belt, some of the
      conditions were corrected, and work was in
      progress to correct the remaining conditions.
      Under all of these circumstances, I . . .
      cannot conclude that the petitioner has
      established a case of aggravated conduct
      supporting the inspector's unwarrantable
      failure finding.

Id. at 1727-28 (emphasis in original). Rather than explicitly
find Windsor's efforts "adequate," he more appropriately found
that, given Windsor's efforts, the Secretary failed to prove
Windsor conduct was aggravated.[7]

 My colleagues also fault the judge for failing to consider

the high degree of danger and obviousness of the accumulations
in reaching his unwarrantable failure determination.[8] While
the Commission generally considers a variety of factors in
determining whether an operator's conduct is aggravated,
including danger and obviousness, explicit consideration of all
the factors is not required. Jim Walter Resources, Inc., 19
FMSHRC 1377, 1379 (Aug. 1997) ("[t]he judge is to consider these
accumulations . . . in light of the other factors that the
Commission may examine in determining whether a violation is
unwarrantable," emphasis added); Lafarge Construction Materials,
20 FMSHRC 1140, 1147 (Oct. 1998).

 The majority's numerous findings of various purported errors

in the judge's decision in this case stands in stark contrast to
the Commission's majority decision in Lafarge, from which I also
dissented. In Lafarge, the judge's finding of unwarrantable
failure was based upon his consideration of but a single factor
which he treated as dispositive - danger. A majority of my
colleagues affirmed this finding despite the fact that the record
contained substantial probative evidence relating to other
factors, including potentially exculpatory evidence. But where
the Lafarge majority affirmed a judge's finding of unwarrantable
failure based on but a single factor, here, a similar majority
subjects a finding of no unwarrantable failure to heightened
scrutiny. They find fault where a judge has failed, in their
view, to do what the judge clearly failed to do in Lafarge.
Here, my colleagues state that their decision "is faithful to our
holding in Lafarge that only those factors that are relevant to the facts of this case' should be applied." Slip op. at 11 n.10. But as I point out, one of the problems in Lafarge was that the judge and the majority ignored evidence relevant to determining the operator's negligence. See 20 FMSHRC at 1155-58 (Comm'r Verheggen, dissenting). This was also the problem in the recent case Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999), petition for review docketed, No. 99-2264 (4th Cir. Sept. 23, 1999), a case in which I also dissented. There, the majority failed to consider exculpatory evidence introduced by the operator, evidence that was clearly relevant to determining the operator's degree of negligence. 21 FMSHRC at 899-900 (Comm'r Verheggen, dissenting) ("the operator introduced exculpatory evidence as to (1) the extent of the violative condition by alleging that [a supervisor's violative] actions placed no one else in harm's way, and (2) Capitol's good faith efforts to be in constant compliance and to avoid the sort of accident that occurred here, as evidenced by what the judge found to be theirresponsible
training program,' as well as the company's work rules and
measures taken to discipline [the supervisor]"). There, too, the
majority cited Lafarge for the proposition that we may pick and
choose among the facts of a case for what might be relevant to
upholding a certain view, as opposed to weighing all the facts
and circumstances relevant to the particular issue at hand. Id.
at 893 n.13. I reject the former proposition because it
represents a double standard, the net effect of which is to make
it more difficult for operators to prove their innocence, an
approach that is inconsistent with the established allocation of
the burden of proof. Peabody, 18 FMSHRC at 499 ("Commission
precedent has established that the Secretary bears the burden of
proving that an operator's conduct, as it relates to a violation,
is unwarrantable.").

 For the foregoing reasons, I would affirm the judge's

finding that Windsor's violation was not unwarrantable.[9]

                          Theodore F. Verheggen, 
                            Commissioner

Distribution

David A. Laing, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, OH 43215

Rebecca J. Zuleski, Esq.
Furbee, Amos, Webb & Critchfield
5000 Hampton Center, Suite 4
Morgantown, WV 26505

Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

FOOTNOTES

 [1]:   The  Commission  is  statutorily  bound to apply  the

substantial evidence test when reviewing a judge's findings of
fact. 30 U.S.C. § 823(d)(2)(A)(ii)(I); Wyoming Fuel Co., 16
FMSHRC 1618, 1627 (Aug. 1994). When reciting this test, the
Commission customarily states merely that "substantial evidence"
means "`such relevant evidence as a reasonable mind might accept
as adequate to support [the judge's] conclusion.'" See, e.g.,
Jim Walter Resources, Inc., 19 FMSHRC 1761, 1767 n.8 (Nov. 1997)
(citations omitted). But in practice, the test involves more
than this simple formulation conveys. It means that the
Commission may not "substitute a competing view of the facts for
the view [an] ALJ reasonably reached." Donovan ex rel. Chacon
v. Phelps Dodge Corp., 709 F.2d 86, 92 (D.C. Cir. 1983).

 [2]:  The judge also found that the cited accumulations were

extensive. 19 FMSHRC at 1724. The judge noted he was "not
totally convinced" by the Secretary's evidence on the duration of
the accumulations. Id. at 1725.

 [3]:  Additional evidence cited by the  judge  in support of

Windsor's efforts include a report prepared by Windsor based on
work assignment sheets and foremen's reports showing additional
cleaning and dusting of a number of areas along the No. 10 belt
line between September 10 and the midnight shift on September 19.
Ex. R-4; see Tr. 234-35.

 [4]:  I believe this to  be  the  case  notwithstanding  the

extensiveness of the accumulations or the fact, as my colleagues
maintain, that certain of the accumulations may have existed for
longer than one shift. Slip op. at 5-8. The standard is not
whether the judge could have reached a different conclusion under
these facts, but whether there is sufficient evidence in the
record to support the judge's conclusion. See Wellmore Coal
Corp. v. FMSHRC, No. 97-1280, 1997 WL 794132 at *3 (4th Cir.
Dec. 30, 1997) ("[T]he Commission's review [is] statutorily
limited to whether the ALJ's findings of fact [are] supported by
substantial evidence. The `possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by
substantial evidence.'" (citation omitted)).

 [5]:  Unwarrantable failure is characterized by such conduct

as "reckless disregard," "indifference," or a "serious lack of
reasonable care." Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 194 (Feb. 1991).

 [6]:  Even if certain  accumulations existed for longer than

one shift, Windsor offered evidence explaining why it was unable
to complete all of its intended corrective actions. See, e.g.,
Tr. 249-50, 257, 260-62, 278-79, 296-99, 300, 318 (testimony
regarding a roof fall and rock duster derailment that interfered
with Windsor's corrective actions).

 [7]:  In support of their conclusion that the  judge  needed

to determine the adequacy of Windsor's abatement efforts, the
majority cites Jim Walter Resources, Inc., 19 FMSHRC 480, 489
(Mar. 1997). Slip op. at 9. In that case, however, the judge
made no finding whatsoever with regard to abatement efforts, and
the Commission explicitly declined to reach the issue: "[The
operator] asserts that it took appropriate steps to prevent
accumulations because one or two miners were assigned to clean up
the area. The judge makes no finding on this issue, nor do we."
19 FMSHRC at 489 (citations omitted, emphasis added). The
passage the majority relies upon is thus dicta. See slip op. at
9 (quoting from the following passage, 19 FMSHRC at 489: "even
if [the operator] had assigned miners to the area, the record
established that such efforts were inadequate because extensive
combustible materials were still permitted to accumulate"). I
find this dicta troubling, since it appears to suggest that no
matter what efforts are undertaken to avoid a violation, any such
efforts are irrelevant for purposes of determining unwarrantable
failure if a violation is ultimately found to have existed.

 [8]:  In fact, the judge  amply  considered the danger posed

by the cited conditions in concluding that the violation was S&S.
19 FMSHRC at 1714-1716.

 [9]:   I  also  note  that, given the  retirement  of  Judge

Koutras, a new judge must be appointed to consider the majority's
remand order. Assignment of a new judge raises two problems:
first, if no new trial is called, the new judge must make factual
findings solely on the basis of a cold record with no opportunity
to acquaint him or herself with the demeanor of the witnesses on
whose testimony he or she must base his or her findings; and
second, if a new trial is held, witnesses will be forced to
recollect events that occurred three years ago. I find both of
these scenarios unfair to both parties.