New Warwick Mining Company
New Warwick Mining Company (FMSHRC PENN 93-445, PENN 94-54): Coal-dust rulings partly affirmed and remanded
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Plain-English summary
New Warwick Mining Company was cited for coal dust accumulations at its Warwick underground coal mine. In docket PENN 94-54, the Commission affirmed that the §75.400 accumulation violation resulted from unwarrantable failure and affirmed that the operator did not violate the preshift examination requirement in §75.360(b). In docket PENN 93-445, the Commission vacated the judge’s finding that five §77.202 violations were not significant and substantial because the judge had not addressed the possible explosion hazard. The Commission remanded that issue for further consideration, while Commissioner Marks would have found the violations significant and substantial.
Decision snapshot
- Cited standards: 30 C.F.R. § 75.400; 30 C.F.R. § 75.360(b); 30 C.F.R. § 77.202
- Outcome: The §75.400 and §75.360(b) rulings were affirmed. The §77.202 non-S&S ruling was vacated and remanded.
- Key point: An S&S analysis must address a reasonably likely explosion hazard when the record raises that issue.
Full text (FMSHRC public release)
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006
September 16, 1996
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA) :
:
v. : Docket Nos. PENN 93-445
: PENN 94-54
NEW WARWICK MINING COMPANY :
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners1
DECISION
BY: Jordan, Chairman; and Riley, Commissioner
These civil penalty proceedings, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or “Act”), raise the issues of whether
Administrative Law Judge Arthur Amchan properly concluded that a violation of 30 C.F.R.
§ 75.4002 by New Warwick Mining Company (“New Warwick”) resulted from its unwarrantable
failure to comply with the standard, whether there was no violation of 30 C.F.R. § 75.360(b),3
1
Commissioner Holen participated in the consideration of this matter, but her term
expired before issuance of this decision. Pursuant to section 113(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 823(c), this panel of three Commissioners has been
designated to exercise the powers of the Commission.
2
Section 75.400 states:
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, or on electric equipment therein.
3
Section 75.360(b) states, in part:
The person conducting the preshift examination shall
examine for hazardous conditions . . . .
and whether five violations of 30 C.F.R. § 77.2024 were not significant and substantial (“S&S”).
16 FMSHRC 2451 (December 1994) (ALJ). The Commission granted cross-petitions for
discretionary review challenging these determinations. For the reasons that follow, we affirm in
part, vacate in part, and remand.5
I.
Factual and Procedural Background
A. Docket No. PENN 94-54
New Warwick operates the Warwick Mine, an underground coal mine, in Greene County,
Pennsylvania. On July 26-28, 1993, Robert Santee, an inspector from the Department of Labor’s
Mine Safety and Health Administration (“MSHA”), inspected the 3 left (012) longwall section of
the mine. 16 FMSHRC at 2452. During this period, New Warwick was mining through a rock
binder in the coal seam, which generated increased amounts of dust. Id. at 2453. In addition, as
the longwall shields advanced, they dug into the mine bottom, “rolling” it onto the shield toes.6
Tr. 110-11. On July 26, Santee found float coal dust accumulations ranging up to 1/4-inch deep
on and behind the longwall shields and issued a citation for violation of section 75.400. 16
FMSHRC at 2452; Gov’t Ex. 4. He informed the mine superintendent and longwall coordinator
that the hose attached to the longwall shear was inadequate to prevent dust from accumulating
and that washdown hoses needed to be installed across the pan line. 16 FMSHRC at 2452; Tr.
23, 79, 160.
On July 27, Santee discovered an accumulation of loose fine coal on a pump car at the end
of the longwall supply track and issued another citation for violation of section 75.400. 16
FMSHRC at 2452; Gov’t Ex. 5. He also observed coal dust accumulations on and behind the
longwall shields, but he did not issue a citation because cleanup was being performed. 16
4
Section 77.202 states:
Coal dust in the air of, or in, or on the surfaces of,
structures, enclosures, or other facilities shall not be allowed to
exist or accumulate in dangerous amounts.
5
Chairman Jordan and Commissioners Marks and Riley vote to affirm the judge’s
determinations that the violation of section 75.400 resulted from unwarrantable failure and that
there was no violation of section 75.360(b). Chairman Jordan and Commissioner Riley vote to
vacate the judge’s determination that the violations of section 77.202 were not S&S and remand
for further consideration. Commissioner Marks would reverse the judge’s S&S determination.
6
A shield toe is the horizontal, bottom part of the shield. Tr. 26.
2
FMSHRC 2452. Santee discussed with the mine safety director the need for continued efforts to
prevent violations of section 75.400 at the longwall. Id.; Tr. 25, 28.
On July 28, Michael Smith, the longwall foreman on the night shift7 at Warwick Mine,
conducted a preshift examination of the mine from 1:00 to 3:00 a.m. Tr. 21, 128. When Smith
examined the 3 left (012) longwall section, he did not note any hazardous accumulations of loose
coal or coal dust. Tr. 21, 132. The longwall broke down at approximately 3:30 a.m. Tr. 21. At
5:10 a.m., Inspector Santee, accompanied by Barry Radolec, an inspector trainee, inspected the
longwall section. 16 FMSHRC at 2452; Tr. 90. Santee found float coal dust accumulations
ranging up to 1/4-inch deep on the longwall shields. 16 FMSHRC at 2452; Gov’t Ex. 1. He also
found float coal dust accumulations on cables, loose coal accumulations ranging up to 6-inches
deep behind the longwall shields, and loose coal mixed with slate rock up to 22-inches deep on
some of the shield toes. Id.
Based on the foregoing, Inspector Santee issued New Warwick Order No. 3655504,
pursuant to section 104(d)(2) of the Mine Act, 30 U.S.C. § 814(d)(2), alleging an unwarrantable
and S&S violation of section 75.400 for failure to clean up the accumulations. 16 FMSHRC at
2452-53; Gov’t Ex. 1. In addition, Santee issued New Warwick Order No. 3655505, pursuant to
section 104(d)(2), alleging an unwarrantable and S&S violation of section 75.360(b) for failure to
note the accumulations in the preshift examination record book. 16 FMSHRC at 2453; Gov’t Ex.
2.
The Secretary of Labor subsequently proposed civil penalty assessments of $4,100 and
$3,800 for the alleged violations of sections 75.400 and 75.360(b), respectively. New Warwick
challenged the proposed assessments, contending that it had not violated the standards, the
violations were not S&S, and the violations were not caused by its unwarrantable failure.
Following an evidentiary hearing, the judge concluded that New Warwick had violated
section 75.400, that the violation was not S&S, but that it had resulted from New Warwick’s
unwarrantable failure to comply with the standard. 16 FMSHRC at 2452-56. The judge based
the unwarrantable failure determination on his findings that, although the accumulations “had not
existed for a long time,” the accumulations were extensive, New Warwick should have been on
“heightened alert” that such accumulations could occur, and New Warwick had not immediately
commenced cleanup of the accumulations. Id. at 2455 & n.5. He assessed a civil penalty of
$2,000. Id. at 2455-56.
Further, the judge concluded that New Warwick had not violated section 75.360(b). Id. at
-
He reasoned that the order was based on the assumption that the accumulations that served
as the basis for the violation of section 75.400 were present during the preshift examination. Id.
The judge credited the testimony of Smith, who conducted the preshift examination between 1:007
The night shift worked from 4:00 p.m. to 4:00 a.m. and the day shift worked from 4:00
a.m. to 4:00 p.m. 16 FMSHRC at 2456; Tr. 28.3
and 3:00 a.m., that he had not observed any hazardous accumulations of coal or coal dust. Id.
Recognizing that the longwall broke down at 3:30 a.m., the judge concluded that the
accumulations observed by the inspector “may not have been present or may not have been as
extensive” during the preshift examination. Id. Therefore, the judge determined that the preshift
examination “may not have been inadequate” and he vacated the order. Id.
The Commission subsequently granted cross-petitions for discretionary review filed by
New Warwick, challenging the judge’s determination that the violation of section 75.400 was
unwarrantable, and by the Secretary, challenging the judge’s determination that there was no
violation of section 75.360(b).
B. Docket No. PENN 93-445
On May 19, 1993, MSHA Inspector Frank Terrett inspected six overland conveyor belt
transfer stations at Warwick Mine.8 16 FMSHRC at 2459. Inside five of the transfer stations,
Terrett found coal dust accumulations ranging from 1/8-inch to 4-inches deep on top of motors,
inside electrical boxes, around belt rollers, and on the floors. Id.; Tr. 187, 189-90, 194-95, 208-
-
Accordingly, he issued New Warwick five citations, pursuant to section 104(a) of the Mine
Act, 30 U.S.C. § 814(a), alleging violations of section 77.202 for failure to clean up the
accumulations. 16 FMSHRC at 2459; Gov’t Exs. 17-21. Subsequently, Inspector Terrett
modified the citations to designate the violations as S&S. 16 FMSHRC at 2460; Tr. 202, 215-17;
Gov’t Exs. 17-21.The Secretary proposed civil penalty assessments totaling $4,060 for the allegedviolations. New Warwick challenged the proposed assessments, contending that it had not
violated the standard and the violations were not S&S.Following an evidentiary hearing, the judge concluded that New Warwick had violatedsection 77.202 but that the violations were not S&S. 16 FMSHRC at 2459-61. He noted that the
Secretary’s theory that the violations were S&S was based largely on the need for an employee to
jump from the second floor of the transfer station to escape a fire resulting from the
accumulations. Id. at 2461. The judge found that each transfer station had three exits on the first
floor and two or three exits on the second floor and that an employee would not have to jump
from the second floor to escape a fire. Id. Therefore, he concluded that the Secretary had failed8
The overland conveyor belt travels over fields from the supplier to the river. Tr. 204.
The transfer stations house motor drives that operate contiguous sections of the conveyor belt.
16 FMSHRC at 2459; Tr. 187. Each transfer station is a 20-feet-square, 2-story metal building
with a concrete first floor and a grate-type second floor. Tr. 204, 227, 229.4
to establish a reasonable likelihood of serious injury. Id. The judge assessed civil penalties
totaling $1,800. Id. at 2462.
The Commission subsequently granted the petition for discretionary review filed by the
Secretary, challenging the judge’s determination that the violations of section 77.202 were not
S&S.
II.
Disposition
A. Docket No. PENN 94-54
1. Unwarrantable Failure
New Warwick argues substantial evidence9 does not support the judge’s finding that the
section 75.400 accumulation violation was unwarrantable. It asserts that the accumulations had
not existed for a long time and were not extensive, it was not on heightened alert for
accumulations, cleanup surpassing the requirements of its cleanup plan had been performed by the
night shift, and the area was going to be hosed down on the first pass by the day shift. N.W. Br.
at 4-9. The Secretary responds that substantial evidence supports the judge’s finding. He asserts
that the accumulations were extensive and took at least one shift to amass, New Warwick was on
notice that accumulations violated the standard, no cleanup had been performed by the night shift,
and New Warwick’s compliance with its cleanup plan does not shield it from an unwarrantable
failure finding. S. Resp. Br. at 3-10.
The unwarrantable failure terminology is taken from section 104(d) of the Mine 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 (December 1987), the Commission
determined that unwarrantable failure is aggravated conduct constituting more than ordinary
9
The Commission is bound by the substantial evidence test when reviewing an
administrative law judge’s factual determinations. 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
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While
we do not lightly overturn a judge’s factual findings and credibility resolutions, neither are we
bound to affirm such determinations if only slight or dubious evidence is present 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). We are guided by the
settled principle that, in reviewing the whole record, an appellate tribunal must also consider
anything in the record that “fairly detracts” from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
5
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, 193-94 (February 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 violation, 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 (February 1994), citing Peabody Coal Co., 14 FMSHRC 1258, 1261
(August 1992).
Preliminarily, the judge’s finding that the accumulations “had not existed for a long time”
is supported by substantial evidence. The record indicates the accumulations resulted in part from
a reduced amount of water applied on the last pass of the longwall shear on the night shift. 16
FMSHRC at 2455. Paul Wells, New Warwick’s longwall foreman on the day shift, testified that
the night shift had “cut out,” i.e., turned around, at the no. 1 shield -- a process which produces a
large amount of water mist and dust. Id. at 2454; Tr. 107-08, 118, 120. He explained that,
during this process the crew usually reduces the amount of water to avoid getting wet from mist
caught in the air traveling down the face. Tr. 118. Wells further stated that water sprays on the
shear were suppressing dust from the headgate to the No. 40 shield during the last 10 or 15
minutes of the shift, but that a miner probably did not manually hose down the shields. Tr. 118-
19, 121-22. In addition, the judge noted that, contrary to Inspector Santee’s and Radolec’s
testimony that it appeared the longwall section had not been cleaned recently and the
accumulations had collected over a full shift, Foreman Smith testified that cleanup had occurred
during the night shift. 16 FMSHRC at 2453, 2455 n.5, citing Tr. 128-30 (longwall shields were
hosed down “usually [on] every pass” and two crew members did nothing but shovel).
Although the accumulations had not existed for a long period of time, substantial evidence
supports the judge’s determination that New Warwick’s violation was aggravated given the
extensiveness of the accumulations, the fact that New Warwick had been placed on notice that
greater efforts were necessary for compliance with the standard, and New Warwick’s failure to
immediately clean up the accumulations.
First, substantial evidence supports the judge’s finding that the accumulations were
extensive. 16 FMSHRC at 2455. Float coal dust had accumulated up to 1/4-inch deep on
surfaces of the longwall shields, headgate, stageloader, cables, and cable trough, covering
energized parts that supply power to the longwall shear. Tr. 18-19, 56, 92-94; Gov’t Ex. 1. In
addition, loose coal had accumulated up to 6-inches deep behind the longwall shields and loose
coal mixed with slate rock had accumulated up to 22-inches deep on some of the shield toes. Tr.
92-93; Gov’t Ex. 1. The accumulations were deposited along the entire longwall section, which
was 123 shields in length. Tr. 98-99, 108; Gov’t Ex. 1.
6
Second, the judge’s finding that New Warwick “should have been on a ‘heightened alert’
that such accumulations could occur” is also supported by substantial evidence. 16 FMSHRC at
2455, citing Drummond Co., 13 FMSHRC 1362, 1368 (September 1991). The Commission has
recognized that repeated similar violations may be relevant to an unwarrantable failure
determination to the extent that they place an operator on notice that greater efforts are necessary
for compliance with a standard. Peabody, 14 FMSHRC at 1263-64; Drummond, 13 FMSHRC at
1363-64, 1368. The record indicates that, during the previous inspection period (April 1 to June
30, 1993), MSHA had found 16 violations of section 75.400 at Warwick. Gov’t Ex. 1.
Moreover, twice during the two days preceding issuance of the instant order, Inspector Santee
informed New Warwick that similar accumulations were not permitted. In fact, the mine
superintendent assured Inspector Santee that preventive measures would be taken seriously
because MSHA could use it as a basis for an unwarrantable failure finding. Tr. 24.
Finally, substantial evidence supports the judge’s finding that New Warwick failed to take
sufficient measures to clean up the accumulations. 16 FMSHRC at 2455 & n.5. In Utah Power
and Light Co., 11 FMSHRC 1926, 1933 (October 1989), the Commission held that the operator
did not demonstrate unwarrantable failure because before and during the inspection, miners were
shoveling the accumulations and attempting to abate the condition. Here, New Warwick was not
engaged in cleanup when Inspector Santee observed the accumulations. Tr. 22, 108-09, 117,
128-30. Further, New Warwick had not yet implemented Inspector Santee’s recommendation
that additional washdown hoses be installed to facilitate cleanup of the accumulations. Tr. 79.
Given New Warwick’s knowledge that the reduction of water would lead to accumulations and
that it had been warned during both of the past two days not to allow accumulations to exist, its
reliance on the night shift’s cleanup efforts or on the anticipated efforts of the day shift was not
reasonable. See Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615 (August 1994) (to
support a conclusion that an operator’s conduct was not unwarrantable, an operator’s good faith
belief that its conduct was the safest method of compliance must be reasonable).
Based on consideration of the above factors, we conclude that substantial evidence
supports the judge’s determination that New Warwick demonstrated aggravated conduct by
failing to clean up the accumulations. Accordingly, we affirm the judge’s holding.
2. Violation of Section 75.360(b)
The Secretary argues that substantial evidence does not support the judge’s finding that
there was no violation of the section 75.360(b) preshift examination requirement. He asserts that
the accumulations were extensive and took at least one shift to amass, the accumulations likely
existed during the preshift examination, and the judge’s finding that there was no preshift violation
does not accord with his finding that the related accumulation violation was unwarrantable. S. Br.
at 6-9. New Warwick responds that substantial evidence supports the judge’s finding. N.W.
Resp. Br. for Dckt. No. PENN 94-54 at 5-10.
In concluding that the accumulations may not have existed or been as extensive during the
7
preshift examination, the judge credited Foreman Smith’s testimony that he had not observed any
hazardous conditions over Inspector Santee’s assumption that the accumulations had collected
over a full shift. 16 FMSHRC at 2456. We find no basis to reverse the judge’s credibility
determination. The record indicates that the preshift examination of the mine was conducted
between 1:00 and 3:00 a.m. (Tr. 21) but does not specify the time at which the longwall section
was examined. Smith related that mining conditions were adverse and, as soon as the shields
moved, they looked as though they had not been cleaned. Tr. 132. He asserted that the
accumulations of float dust in the trough could have amassed in one pass of the longwall shear,
which normally takes 30 to 45 minutes. Tr. 86-87, 111-12, 132-33. Thus, the longwall section
could have been examined early during the preshift examination and one or more passes of the
longwall could have occurred before the longwall broke down at 3:30 a.m. Therefore, the judge’s
conclusion that the accumulations may not have existed or been as extensive at the time the
longwall section was examined is supported by substantial evidence. Accordingly, we affirm the
judge’s holding that New Warwick did not violate section 75.360(b).10
B. Docket No. PENN 93-445
1. Significant and Substantial
The Secretary argues substantial evidence does not support the judge’s finding that the
section 77.202 accumulation violations in the transfer stations were not S&S. He asserts the
judge ignored testimony that an explosion, rather than a fire alone, was reasonably likely to occur
and result in serious injury. S. Br. at 9-13. New Warwick responds that substantial evidence
supports the judge’s finding. It contends that the inspector improperly modified the citations, a
fire and subsequent explosion were not likely, and an explosion has never occurred in a transfer
station. N.W. Resp. Br. for Dckt. No. PENN 93-445 at 6-12.
The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d),
and refers to more serious violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard -- that is, a
10
We reject the Secretary’s argument that the judge’s determination that there was no
preshift violation is inconsistent with his finding that the violation of section 75.400 was
aggravated. Although the accumulations were extensive, they could have amassed following
examination of the longwall section.
8
measure of danger to safety -- contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in an
injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
Id. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d at 135;
Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued
normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). When
examining whether an explosion or ignition is reasonably likely to occur, it is appropriate to
consider whether a “confluence of factors” exists to create such a likelihood. Texasgulf, Inc., 10
FMSHRC 498, 501 (April 1988); see also Eastern Assoc. Coal Corp., 13 FMSHRC 178, 184
(February 1991).
We agree with the Secretary that the judge erred by failing to address the hazard of
explosion. The record indicates that Inspector Terrett was concerned about both the hazards of
fire, which could result from deposited coal dust, and explosion, which could result from
suspended coal dust. Tr. 192, 195, 201-02, 210-14, 219, 222. Terrett acknowledged that, if
there were only a fire, an employee would not have difficulty getting out of the transfer station
because he would have warning. Tr. 222-23. He also testified, however, that if the fire were
instantaneous and created a dust explosion, an employee would have difficulty escaping and could
be “killed right there.” Tr. 195, 223. In addition to his concern that an employee might have to
jump off of the second floor to escape a fire or explosion, Terrett was concerned that an employee
could be burned, inhale smoke or byproducts of the belts, or might not be able to get out of the
building. Tr. 201, 202-03, 213.
New Warwick’s argument that there is no evidence an explosion has ever occurred in a
transfer station is not dispositive of an S&S finding. Buffalo Crushed Stone, Inc., 16 FMSHRC
2043, 2046 (October 1994); Ozark-Mahoning Co., 8 FMSHRC 190, 192 (February 1986).
Furthermore, the record does not suggest that Inspector Terrett acted inappropriately by
modifying the citations. Terrett testified he modified the S&S designations after realizing the
seriousness of the violations. Tr. 202-03, 215. He explained that, as a new inspector, he was
inexperienced with “putting [citations] together” and writing modifications. Tr. 216. Terrett
stated that he conferred with his supervisor to ensure that the modifications were correct. Tr.
216-17.
Because the judge failed to evaluate evidence or make findings and conclusions regarding
the hazard of explosion, we vacate the judge’s determination that the violations were not S&S
and remand the matter for further consideration.
9
III.
Conclusion
For the foregoing reasons, we affirm the judge’s determinations that the violation of
section 75.400 resulted from unwarrantable failure and that there was no violation of section
75.360(b). In addition, we vacate the judge’s determination that the violations of section 77.202
were not S&S and remand for further consideration.
Mary Lu Jordan, Chairman
James C. Riley, Commissioner
10
Commissioner Marks, concurring in part and dissenting in part:
I concur in this decision, with the exception of the disposition regarding the violations of
30 C.F.R. § 77.202. In view of the record evidence, I conclude that the violations were S&S and
therefore I would reverse the judge’s contrary conclusion.
Marc Lincoln Marks, Commissioner
11
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