Daneker Sand & Gravel

Plain-English summary

Daneker Sand & Gravel faced ten alleged safety violations involving missing machine guards, missing first-aid equipment, and an inoperative loader backup alarm. The original assessments totaled $528, and the parties proposed a $132 settlement based on the sole proprietorship's reported financial losses and the risk that the full amount would affect its ability to stay in business. Judge Paul Merlin accepted the parties' representations, considered the operator's good-faith abatement and lack of other assessed violations in the prior two years, and approved the reduced penalties. He ordered payment of $132 within 30 days.

Decision snapshot

• Cited standard(s): 30 C.F.R. §§ 56.15-1 and 56.9-87
• Outcome: Ten penalties were reduced from a total of $528 to $132, and payment was ordered within 30 days.
• Key point: The penalty may be reduced when the statutory criteria, including the effect on an operator's ability to remain in business, support the settlement.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. DANEKER SAND & GRAVEL
DDATE:
19850830
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. YORK 85-1-M
PETITIONER A.C. No. 18-00707-05502

       v.                           Docket No. YORK 85-3-M
                                    A.C. No. 18-00707-05503

DANEKER SAND & GRAVEL,
RESPONDENT Daneker Sand & Gravel

                        DECISION APPROVING SETTLEMENT

Before: Judge Merlin

 The Solicitor has filed a proposal for penalty for the ten

violations involved in this matter. The original assessments for
the alleged violations in both cases totalled $528, and the
proposed settlements are for $132. The Solicitor believes that a
reduction from the original assessment is warranted for the
following reasons.

 Citation Nos. 2369404, 2369405, 2369406, 2369407, 2369408,

2369410, 2369411 and 2369412 were all issued on July 16, 1984 for
violations of 30 C.F.R. 56.15-1. These violations involved the
lack of guards on machinery such as conveyor rollers (2369405),
(2369406); pinch points of V-belt drives (2369407), (2369412);
tail pulleys of the No. 1 conveyor (2369404); a gravel conveyor
(2369408), (2369410); and sand conveyor (2369411). Four of these
violations were originally assessed at $68, and the other four at
$54. The violations were later terminated when the operator
provided the appropriate guards.

 Citation No. 2369415 was issued for a violation of 30 C.F.R.

56.15-1 and originally assessed at $20. The inspector observe
that first aid equipment was not provided at the mine site.
Citation No. 2369414 was issued for a violation of 30 C.F.R.
56.9-87 and originally assessed at $20 when an inspector observed
that the back-up alarm on the loader feeding the wash plant was
out of order.

 The Solicitor believes that a reduction from the total

amount originally assessed is appropriate due to the financial
hardship involved here. Daneker Sand and Gravel, a sole
proprietorship, reported losses of $136,250 in 1983 and $62,155
in 1984. The supervisory inspector on this case believed that

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the tax returns accurately reflected the state of the business
and recommended to his supervisor that the penalties "be reduced
as much as possible." The parties assert that the original
assessment of $528 would affect the operator's ability to stay in
business. Mr. Daneker has shown good faith in abating the
conditions. Also, there were no other assessed violations in the
prior two year period.

 In view of the foregoing, I accept the parties'

representations and conclude that the reduced penalties are
appropriate under the statutory criteria of section 110(i) which
take into account the effect of a penalty on an operator's
continued ability to remain in business. However, the guarding
violations are a cause for concern and I trust the operator will
be more careful in the future.

 Accordingly, the operator is ORDERED TO PAY $132 within 30

days of the date of this decision.

                         Paul Merlin
                         Chief Administrative Law Judge