Andersen Sand & Gravel Company

Plain-English summary

Andersen Sand & Gravel operated a seasonal sand-and-gravel pit and dredging plant in Michigan. A berm was missing along 10 to 50 feet of a roadway bank beside a lake, where the drop-off was about 12 feet. The judge found that the condition violated 30 C.F.R. § 56.9300(a), which requires berms or guardrails where a drop-off could endanger equipment or people. The violation was found serious and an unwarrantable failure because the supervisor knew the berm was missing and did not replace it before production resumed. The citation was affirmed and a $500 civil penalty was assessed.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9300(a)
• Outcome: Citation No. 3444340 was affirmed; a $500 penalty was ordered.
• Key point: A known missing berm beside a deep drop-off violated the mine safety standard and supported an unwarrantable-failure finding.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. LAKE 91-10-M
PETITIONER A. C. No. 20-00667-05511
v.
Leix Road Dredge and Mill
ANDERSEN SAND & GRAVEL
COMPANY,
RESPONDENT

                               DECISION

Appearances: Christine M. Kassak, Esq., Office of the Solicitor,
U. S. Department of Labor, Chicago, Illinois, for
the Secretary of Labor (Secretary);
Frank M. Andersen, President and Owner, Andersen
Sand & Gravel Company (Andersen), for Respondent.

Before: Judge Broderick

STATEMENT OF THE CASE

 The Secretary seeks a civil penalty for an alleged violation

of the mandatory safety standard in 30 C.F.R. § 56.9300(a) at
Andersen's Leix Road Dredge and Mill. The violation was charged
in a 104(d)(1) citation because of the unwarrantable failure of
Andersen to comply with the regulation. Pursuant to notice, the
case was called for hearing in Bay City, Michigan on July 23,
1991. Federal Mine Inspector Victor W. Chicky testified on behalf
of the Secretary, and the Secretary called Charles Corl,
Supervisor of the subject plant as a witness. Andersen
cross-examined both witnesses, but did not call any additional
witnesses. Both parties waived their right to file post-hearing
briefs and argued their respective positions on the record. I
have considered the entire record and the contentions of the
parties in making the following decision.

FINDINGS OF FACT

 1. Andersen is the owner and operator of a sand and gravel

pit in Tuscola County, Michigan, known as the Leix Road Dredge
and Mill. Its operations affect interstate commerce.

 2. The plant is a small operation, which produces sand and

gravel seasonally. It has one full time and one part time
employee. In 1989, it produced and sold 45,889 tons of material.
During the year, prior to the violation alleged herein,
3789 production hours were worked.

 3. Andersen's history of prior violations is not such that a

penalty otherwise appropriate should be either increased or
decreased because of it.

 4. The imposition of a penalty in this proceeding will not

affect Andersen's ability to continue in business.

 5. The subject operation involves the dredging of gravel

from a lake or pond and transporting it by conveyor to a mill
where it is screened, crushed, sized, washed, and distributed to
customers.

 6. In approximately November 1989, Andersen's Supervisor

Charles Corl removed a berm which had been constructed at the
dredging area of the plant in order to work on machinery involved
in the floating dredge.

 7. Between November 1989, and late March 1990, the dredging

operation was shut down, although gravel continued to be sold to
customers.

 8. From the time the operation began in late March 1990,

until May 2, 1990, Corl was involved in producing 2s sand which
was needed by a customer. He knew the berm was missing, but had
not gotten around to replacing it.

 9. On May 3, 1990, a berm between 10 and 50 feet wide was

missing from the dredging area at the lake. The vertical drop to
the lake was about 12 feet.

 10. The water in the lake was between 4 and 10 feet deep,

shallower at the edge.

 11. Corl was operating a front-end loader in the area. The

loader was about 22 feet long and weighed 18 tons. Tracks were
seen approaching 8 to 10 feet from the vertical drop off.

 12. On May 3, 1990, Inspector Chicky issued a citation under

Section 104(a) charging a violation of 30 C.F.R. § 56.9300(a). It
was modified on May 7, 1990, to a 104(d)(1) citation because of
the unwarrantable failure of Andersen to comply with the
standard.

 13. The condition was abated immediately and the citation

was terminated 20 minutes after it was issued.

REGULATION

 30 C.F.R. § 56.9300(a) provides as follows:

         Berms on guard rails shall be provided and maintained
         on the banks of roadways where a drop-off exists of
         sufficient grade or depth to cause a vehicle to
         overturn or endanger persons in equipment.

ISSUES
1. Whether the evidence establishes a violation of the
safety standard requiring berms?

 2. If so, what is the appropriate penalty?

CONCLUSIONS OF LAW

 1. Andersen is subject to the provisions of the Mine Act in

the operation of the subject facility, and I have jurisdiction
over the parties and subject matter of this proceeding.

 2. Andersen failed to have a berm or guardrail on 10 to 50

feet of the bank of a roadway where a drop off of 12 feet
existed. This is a violation of 30 C.F.R. § 56.9300(a).

 3. The violation was serious. It could have resulted in the

front-end loader overturning, and the operator being severely
injured or even drowned.

 4. Andersen was aware of the violation, and the failure to

comply with the standard was an unwarrantable failure.

 5. Based on the criteria in Section 110(i) of the Act, I

conclude that an appropriate penalty for the violation is $500.

                                    ORDER

 Based on the above findings of fact and conclusions of law,

IT IS ORDERED:

 1. Citation No. 3444340 is AFFIRMED.

 2. Respondent shall, within 30 days of the date of this

decision, pay to the Secretary a civil penalty in the amount of
$500 for the violation found herein.

                                    James A. Broderick
                                    Administrative Law Judge