Morgan Corporation

Read the official release (fmshrc.gov)

Plain-English summary

Morgan Corporation was an independent contractor performing construction work at a surface gold mine. A pan scraper operator backed over a spotter who was working near the machine, and the spotter died at the scene. Judge George A. Koutras found that the operator did not make certain by signal or other means that the spotter was clear before moving the scraper, even though the scraper's backup alarm was operating. The citation was affirmed as significant and substantial, moderate negligence was found, and a $1,000 civil penalty was assessed.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.9005
• Outcome: Citation No. 3254881 was affirmed as significant and substantial, and a $1,000 penalty was assessed.
• Key point: A functioning backup alarm did not replace the operator's duty to make certain that the spotter was clear before backing equipment with an obstructed rear view.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) V. MORGAN CORPORATION
DDATE:
19900110
TTEXT:

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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. SE 89-50-M
PETITIONER A.C. No. 38-00626-05502 AIR
v.
Ridgeway Mine
MORGAN CORPORATION,
RESPONDENT

                            DECISION

Appearances: Ken S. Welsch, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia, for the
Petitioner;
Carl B. Carruth, Esq., McNair Law Firm, Columbia,
South Carolina, for the Respondent.

Before: Judge Koutras

                    Statement of the Case

 This is a civil penalty proceeding initiated by the

petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a), seeking a civil penalty assessment in the amount of
$2,000, for an alleged violation of mandatory safety standard 30
C.F.R. 56.9005. The respondent filed a timely answer denying
the alleged violation, and a hearing was held in Columbia, South
Carolina. The parties filed posthearing briefs, and I have
considered their arguments in the course of my adjudication of
this matter.

                              Issues

 The issues presented in this proceeding are (1) whether the

respondent has violated the standard as alleged in the proposal
for assessment of civil penalty, (2) the appropriate civil
penalty that should be assessed against the respondent for the
alleged violation based upon the criteria set forth in section
110(a) of the Act, and (3) whether the violation was "significant
and substantial."

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Applicable Statutory and Regulatory Provisions

 1. The Federal Mine Safety and Health Act of 1977, Pub. L.

95-164, 30 U.S.C. 801 et seq.

  2. Section 110(i) of the 1977 Act, 30 U.S.C.        820(i).

  3. Commission Rules, 20 C.F.R.     2700.1 et seq.

Stipulations

  The parties stipulated to the following (Tr. 4-5):

      1. At the time of the issuance of the violation, the

respondent was an independent contractor performing certain
construction work at a gold mine. The respondent is subject to
the jurisdiction of the Act.

      2. The respondent presently employs 25 employees. At

the time of the issuance of the violation the respondent had 56
employees, and its annual production manhours was 53,912.

      3. The respondent's history of prior violations is

reflected in an MSHA computer print-out, exhibit P-1.

                        Discussion

 The respondent is an independent contractor who was in the

process of constructing waste settlement ponds at an open pit
gold mine on August 18, 1988. Two or three pan scrapers were
being used to construct or build up a strip or barge ramp
approximately 200 feet long and 45 feet wide, and three employees
of the respondent were involved in this work. Mr. Roosevelt
Williams and Mr. Boykin Durham were operating pan scrapers
bringing soil to and dumping it on the ramp under construction.
Mr. James Wise was assigned as a spotter to direct the pan
scrapers where to dump their loads of soil and to serve as a
flagger to assist them in backing up because the ramp was too
narrow to permit the scrapers to turn around on the ramp and
drive out in a forward direction. At approximately 11:00 a.m.,
after unloading his load of soil, Mr. Williams put his scraper in
reverse and began backing up, and the audible backup alarm on the
machine was operating and sounding. After backing up for a
distance of approximately 100 feet, Mr. Williams looked around
and saw Mr. Wise laying approximately 98 feet in front of his
machine. Mr. Wise had been run over by the machine, and died at
the scene.

 MSHA conducted an investigation of the accident (exhibit

P-2), and on August 20, 1989, MSHA Inspector Robert M. Friend

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issued a section 104(a) "S&S" Citation No. 3254881, citing an
alleged violation of mandatory safety standard 30 C.F.R.
56.9005. The condition or practice cited by the inspector states
as follows: "An accident resulting in a fatality occurred on
8-18-88 when a spotter was backed over by a pan scraper. A signal
from the spotter, sight of the spotter, or other means was not
used to insure that the person was in the clear before moving
backwards."

Petitioner's Testimony and Evidence

 Roosevelt Williams testified that he last worked for the

respondent in August, 1988, as a pan scraper operator. He
confirmed that he knew the accident victim James Wise, and stated
that his job was to act "something like a flagman" to instruct
the drivers where to dump their loads of dirt. Mr. Williams
stated that on the day of the accident there were two or three
pan scrapers operating at the site, and he explained the work
that was being performed. He stated that after dumping his load
he had to back his scraper up for a distance of approximately 100
feet along the strip that was being constructed in order to turn
around and leave for another load. After backing up, and before
leaving to get another load, he observed Mr. Wise going to the
water cooler. Upon his return with a load of dirt he observed Mr.
Wise walking toward the strip area where the load was to be
dumped, and Mr. Wise waved him to go ahead. Mr. Williams then
proceeded to drive approximately 100 feet along the strip, dumped
his load, and backed out for approximately 100 feet when he
observed Mr. Wise laying in front of him (Tr. 5-11).

 Mr. Williams stated that while he was backing up after

dumping his load he did not see Mr. Wise. He stated that from the
driver's seat, the visibility to the left of the pan scraper is
no problem. With regard to the visibility to the right side of
the scraper, he stated that the scraper he was operating on the
day in question did not have a right rear view mirror, and as he
looked back from his operator's position he could not see any
objects that are within 30 feet of the scraper (Tr. 12-14).

 Mr. Williams stated that he has operated backhoes, pan

scrapers, and small dozers for approximately 4 years, and he
confirmed that a pan scraper is normally operated in a forward
direction, and that under normal operating conditions he does not
generally back it up for 100 feet (Tr. 14). He confirmed that he
was instructed at safety meetings "to look out for each other."
He also confirmed that he could not see Mr. Wise while backing up
on the day in question, and that he had not been instructed not
to operate the scraper in reverse without seeing Mr. Wise (Tr.
15). Mr. Williams also stated that part of Mr. Wise's duties were
to station himself in a position where he could be seen so

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that he could help him back out. Mr. Williams explained further
as follows (Tr. 16):

      Q. Well, what happened on this particular day?

      A. Just like I said, he was walking up beside me when
      I was coming in. He was on the left-hand side. I
      looked back on my left side to back out. I did not see
      him.

      Q. You didn't see him on the left side?

      A. When I looked back on the right-hand side, I did
      not see him, and the right-hand wheel ran over him.

      Q. Was it the instruction of the spotter . . . to the
      instructions to the spotters, were they told to . . .
      was it their job just to show you where to dump the
      dirt and then just stay out of your way?

      A. Ask me that one more time?

      Q. As far as you know, was it the instructions to the
      spotters to show the pan scraper operators where to
      dump the dirt and then just stay out of the way?

      A. Yes, sir, as far as I know it was his instructions.

 On cross-examination, Mr. Williams stated that he was not

certain that Mr. Wise was in the clear before he started backing
up, and that he had no idea that he was behind the scraper. He
also stated that he would not have backed up if he thought that
Mr. Wise was behind him (Tr. 17). Mr. Williams confirmed that the
scraper was equipped with a back-up alarm which starts sounding
as soon as it is put in reverse, that it was operating on the day
in question, and that he heard it sounding while the machine was
in reverse (Tr. 18).

 Robert M. Friend, MSHA supervisory inspector, testified as

to his background and experience, and he confirmed that during
his prior employment at a quarry he operated a 631 Caterpillar
pan scraper similar in size to the one operated by Mr. Williams,
and also operated dozers and front-end loaders. He confirmed that
he conducted the accident investigation on August 19 and 20,
1988, and that the accident occurred on August 18, 1988. He
described the accident scene, and he explained that it was a
"barge ramp" approximately 45 to 46 feet wide and 200 feet long,
and that it was used as "some kind of pumping facility, perhaps
covering a pipeline" (Tr. 21-22). He explained that the
respondent was a subcontractor engaged in the construction of
pond settling basins used to collect water used in the milling
and extraction of gold (Tr. 22).

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Mr. Friend stated that his investigation confirmed that Mr. Wise
had received hazard recognition and task training (Tr. 25). He
identified the scraper operated by Mr. Williams as a model 623
manufactured in the 1970's, and stated that it was similar in
size and dimensions as the Caterpillar 623-E scraper depicted in
exhibit P-3 (Tr. 27). Referring to a photograph of the machine
found on page 5 of the exhibit, Mr. Friend stated that from the
operator's seat, visibility to the left of the machine is good,
but very poor to the right side. In view of the size of the tires
and the structure itself, visibility to the right rear corner of
the machine would be extremely poor (Tr. 28).

 Mr. Friend confirmed that he issued the citation citing a

violation of section 56.9005, because scraper operator Williams
failed to make certain by signal or any other means that Mr. Wise
was in the clear before moving the scraper. Mr. Friend
interpreted "signal or other means" to mean any hand or verbal
signal, or knowing by visual observation that Mr. Wise was in the
clear (Tr. 29). He confirmed that the reverse signal alarm was
working. He stated that mandatory standard section 56.9087 covers
back-up alarms, and that section 56.9058 covers the use of
spotters while trucks are backing up and dumping. He explained
that a scraper is not a truck, and that he cited section 56.9005
because "it covers all equipment and all people" (Tr. 30). He did
not believe that the use of a back-up alarm in compliance with
section 56.9087 was sufficient to comply with section 56.9005
because Mr. Wise had been assigned to a confined area for several
days and Mr. Williams was never instructed to insure that he had
Mr. Wise in view before backing up, or to use any kind of signals
to make sure that he was in the clear (Tr. 30).

 Mr. Friend stated that he based his moderate negligence

finding on the fact that the back-up alarm was operating quite
well and that Mr. Wise had been instructed that after he signaled
the scraper operator where to dump he was to get out of the way
(Tr. 31). He also confirmed that he considered the violation to
be significant and substantial because the criteria for an "S&S"
violation "was met in this case in that an accident did occur and
it was a fatality" (Tr. 31).

 On cross-examination, Mr. Friend could not recall whether or

not he observed a right rear-view mirror on the pan scraper in
question during his investigation, but that he did recall that a
left rear view mirror was on the machine (Tr. 34). He confirmed
that he measured the noise level of the back-up alarm and found
it to be quite loud at 120 decibels measured 6 inches from the
alarm, and 97 decibels as measured 10 feet from the alarm. He
also confirmed that the alarm was located at the very rear of the
scraper, and if anyone were standing behind the machine as it
backed up the alarm would sound louder and louder as the machine

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approached the individual. Mr. Friend agreed that the pan scraper
is a heavy piece of equipment with an obstructed view to the rear
(Tr. 36).

 Mr. Friend believed that he reviewed the coroner's autopsy

report in the course of his investigation, and that it indicated
that Mr. Wise had a serious heart condition. However, the heart
condition was not the cause of death. Respondent's counsel read
from the report which quoted the coroner as stating that Mr. Wise
may have suffered a heart attack, thereby preventing him from
moving out of the path of the machine as it backed up. However,
Mr. Friend could not recall receiving a copy of the report, but
did confirm that he received a copy of the death certificate (Tr.
39).

 Mr. Friend confirmed that Mr. Wise was found approximately

45 feet behind the point where Mr. Williams began backing up his
scraper. Mr. Friend stated that even if Mr. Williams had been
told not to back up or move the scraper unless he had Mr. Wise in
sight, it would not have made any difference insofar as the
violation is concerned, but it would have resulted in a low
negligence finding as opposed to a finding of moderate negligence
(Tr. 46-47).

 In response to further questions, Mr. Friend was of the

opinion that section 56.9005 was the proper standard to cite in
this case, and that it required Mr. Williams to have "line of
sight vision" of Mr. Wise before he backed up. He confirmed that
this standard is commonly used for all kinds of equipment,
including conveyors, regardless of when they are initially
started up, and that anytime the equipment is moved, operators
must make certain that everyone is in the clear, particularly on
the facts in this case where Mr. Williams knew that Mr. Wise was
in the immediate area all of the time. Mr. Friend stated further
that it is common industry practice that a loader operator does
not load a truck if the truck driver gets out of the truck and
the loader operator cannot see him (Tr. 48).

 Mr. Friend confirmed that pan scrapers do not normally back

up, and are usually operated in a forward cycle while loading and
dumping. The instant case is unique in that the scrapers were
operating in a constricted ramp area, and the scraper operator
had to back out after dumping a load. Since the respondent knew
that Mr. Wise had 100 percent exposure, Mr. Williams was required
by section 56.9005, to insure that Mr. Wise was in the clear
before moving the machine (Tr. 51).

Respondent's Testimony and Evidence

 Boykin Durham testified that he has been employed by the

respondent for approximately 18 months and was hired the same day
as Mr. Williams. He testified that they both received safety
training when they were hired, and he explained the training
received. With regard to any training concerning keeping spotters
in view while operating a piece of equipment such as a pan
scraper, Mr. Durham stated as follows (Tr. 57):

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Q. What were you told about that?

      A. We was told to . . . if you got a spotter out there
      to keep him in your eyesight. If you don't see him
      anywhere, stop and blow your horn and look around for
      him, you know. If you still don't see him, just get
      off the machine until you locate him.

      Q. Were you told anything about whether or not it
      would be permissible to move your equipment before you
      located the spotter?

      A. No, you wasn't supposed to move until you located
      him.

      Q. Was Roosevelt there when that was said?

      A. Yes, yes, sir.

 Mr. Durham stated that he also received additional training

during weekly safety meetings, and that the instruction for
keeping the spotter in view was discussed or mentioned two or
three times a month during these meetings, continuously through
the time of the accident (Tr. 58).

 On cross-examination, Mr. Durham stated that the training

was given by a supervisor, and he confirmed that he has operated
a pan scraper for 10 to 13 years, and was operating one on the
day of the accident at the same site (Tr. 59). He stated that
after dumping a load of dirt on the ramp in question, he would
not have backed up without having the spotter in view. If he
could not see him, he would have stopped before backing up to
look around for him. If he did not see him, he would "just look
all around good before I'd back up." He confirmed that this was
his understanding of the instructions given him by the
respondent, and that he would not have backed up without having
Mr. Wise in view (Tr. 60-61).

 Mr. Durham confirmed that he is still employed by the

respondent as a scraper operator. He further confirmed that
spotters are not always used, that it would depend on the work
being performed, and stated that "sometimes we don't have them
because we don't have to, you know, be in these areas where you
can't, you know, see too good" (Tr. 61). He confirmed that Mr.
Wise's job at the time of the accident was to show him where to
dump the dirt, and that he did not see Mr. Wise go to use the
water cooler (Tr. 61).

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In response to further questions, Mr. Durham stated that the
scraper would not operate too fast in reverse, and although he
did not know how fast it would operate in reverse, he estimated
that it would not go faster than 2 miles an hour (Tr. 63). He
confirmed that he and Mr. Williams would take turns going in and
out of the ramp area while dumping their loads, and that Mr. Wise
was serving as a spotter for both of them. He estimated that he
would make seven trips in and out of the ramp during his shift,
and that Mr. Wise would show him where to dump the loads. He
confirmed that he always had Mr. Wise in sight while going and
coming from the area, and that he had no occasion to ever look
for him or to blow his horn and get out of his equipment to look
for him (Tr. 64). He confirmed that the person who trained him,
and who conducted the safety meetings, would read the
instructions from a "safety sheet" and discuss them. He also
confirmed that he went to school a few times and was given books
and instructional materials (Tr. 65).

Respondent's Arguments

 The arguments made by the respondent in its posthearing

brief are essentially the same as those made by its counsel
during the course of the hearing. Respondent takes the position
that section 56.9005, did not require a scraper operator such as
Mr. Williams to dismount from his machine to determine Mr. Wise's
position to the rear of the machine before he started to back-up
the machine. Respondent argues that section 56.9005, has to be
interpreted with some common sense, and that it must be read in
conjunction with section 56.9087, which requires a back-up alarm
on machinery which has an obstructed view to the rear. Counsel
argues that a piece of equipment which does not have an
obstructed view to the rear need not be equipped with a back-up
alarm because the operator can visually determine that everyone
has cleared before he moves the machine. However, if the machine
operator's view to the rear is obstructed, counsel concedes that
section 56.9087, requires a back-up alarm, but he takes the
position that by inference, the machine operator must be allowed
to rely on the use of the back-up alarm, and he should not be
required to dismount from the machine to search about for anyone
who may be to the rear of the machine (Tr. 40). Counsel further
explained the respondent's position as follows at (Tr. 41):

      THE COURT: But he was also assuming that . . . carry-
 ing your argument further, then, that's all the equip-
 ment operator has to do because he then will assume
 that once he puts that backup alarm on, number one, the
 fellow to the rear is going to hear it, and is going to
 get out of the way and number two, that fellow would
 follow company policy that you get out of the way of
 heavy equipment. Is that true? That's your theory of the
 case, isn't it?

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MR. CARRUTH: Yes, Your Honor, the MSHA standards do
not require an equipment operator, operating a piece of
equipment, which has an obstructed view to dismount his
equipment and go around and look behind him before he
moves it. That's the purpose of the back up alarm.
The standard which says that the operator shall assure
that everybody is clear before he moves his equipment
is assuming that the operator can see in his position.
The fact that he has an obstructed view, which would
prevent him from being able to see to ascertain that
everything was clear, is the reason for the back up
alarm Standard. These two, I think, have to be read
together. Now, clearly, Your Honor, an operator could
not rely on a horn or an alarm and intentionally run
somebody down . . . .

 Respondent's counsel argued further that the respondent is

not required to have both a spotter and a back-up alarm because
the language found in section 56.9087, with respect to an
obstructed view to the rear of the equipment states that a
back-up alarm or a spotter may be used, and it does not state
that a back-up alarm and a spotter must be used. Counsel
concludes that the operator is entitled to rely on his back-up
alarm while backing up his machine, and requiring both a spotter
and a back-up alarm would require the operator to always know the
whereabouts of the spotter (Tr. 42-43). Counsel's position is
further states as follows at (Tr. 52-53):

  THE COURT: The issue on this standard is, as I see it,
  and you may correct me if I'm wrong, is that MSHA's
  theory is that the equipment operator, which is a pan
  scraper operator here, Mr. Williams, shall be certain
  . . . in other words they said that Mr. Williams had a
  responsibility by signal or other means. Obviously
  there wasn't a signal and the other means, I suppose is
  that Mr. Williams should not have backed up this piece
  of equipment until he knew precisely where this guy was
  because he had passed him on the road going in, the man
  waved him on, they were in a restricted area; they were
  in a narrow zone; they were on the ramp, they had been
  doing that for a couple of days and they're holding
  Mr. Williams accountable for knowing or at least pre-
  suming that he should have known that this man was back
  there someplace and he shouldn't have backed up that
  equipment without making sure of where he was.

       MR. CARRUTH: That's their position.

       THE COURT: That's their position. Your position is,
       well that standard really is not appropriate here
       because we were complying with the other standard which

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says that, you know, you have the audible back up alarm
and we had one. According to the testimony in this
case it was clearly loud and clear that this machine
was backing up, this man should have seen it. It
backed up for "X" number of feet before it ran over
him. We did everything reasonably possible to prevent
the accident, not only that, we were in compliance
because we had a back up alarm.

      MR. CARRUTH: Hopefully, Your Honor, we would take the
      position that the back up alarm is a signal. In this
      case, there is a signal to anybody that may be in the
      area that when I'm backing up, get out of the way.

      THE COURT: But I'm sure that Mr. Welsch and the
      inspector would argue then, that the operator shall be
      certain by signal or other means that all persons are
      clear, meaning that the signal there means a personal
      signal of some kind, either a wink or a nod or the
      normal signals that they use because certainly if the
      operator simply puts his reverse signal on and backs
      up, that he really doesn't know where the guy is.

      MR. CARRUTH: Your Honor, you cannot read that standard
      without also reading it in conjunction with the other
      standard and the other standard says you have either/or
      the back alarm or a signal person, a spotter.

      THE COURT: Spotter, right.

      MR. CARRUTH: Somebody to signal.

      THE COURT: Right.

      MR. CARRUTH: Either/or, not both.

      THE COURT: Right.

      MR. CARRUTH: We had the backup alarm. What they're
      saying is, we should have had both.

MSHA's Arguments

 In its posthearing brief, MSHA takes the position that it is

undisputed that equipment operator Williams had an obstructed
view to the rear of the pan scraper, particularly on the right
side, and that he estimated that this obstruction would be up to
30 feet behind the scraper on the right side. MSHA asserts
further that Mr. Williams never made certain that Mr. Wise was
clear from behind the scraper, and that it was his understanding
that the respondent's instructions required him to make certain
that Mr. Wise was in the clear before placing the equipment in

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reverse. MSHA's assertion in this regard is incorrect. Mr.
Williams testified that he never received any such instructions
from the respondent (Tr. 15).

 MSHA argues that the cited standard clearly requires

certainty before the movement of any equipment, and that this
certainty is the equipment operator's responsibility. On the
facts of this case, where it is clear that the scraper operator
Williams knew that Mr. Wise was behind him, but was not certain
that the area was clear while the scraper was operated in
reverse, and where there was no signal or other means between Mr.
Williams and Mr. Wise to assure this clearance, MSHA concludes
that a violation of section 56.9005, had been established. In
support of its position, MSHA cites a decision by the U.S. Court
of appeals for the Fifth Circuit, affirming a decision by
Commission Judge John J. Morris in Texas Industries, Inc., 4
FMSHRC 352 (1982); 2 MSHC 1687 (1982).

 In the Texas Industries, Inc., case, a miner was killed when

he became entangled in a log washer machine while beating on the
machine screen to unclog it while standing on a catwalk. The
miner had been observed by the supervisor who was at the scene,
and the supervisor left the area after telling the miner that he
was going to engage the washer. The supervisor started the washer
without any signal to the miner, and after returning to the
scene, he found that the miner had become entangled and killed by
the machine. Judge Morris found that the evidence established
that the supervisor was unsure whether the miner knew that he
would turn on the machine immediately, whether he thought there
would be a warning signal, or whether he heard the supervisor at
all. Judge Morris concluded that the supervisor could not have
been sure that the miner would be clear of the machine when it
was started, and that certainty was an exactitude demanded by the
standard.

 In affirming Judge Morris' decision, the Fifth Circuit

rejected the mine operator's assertion that in large industrial
plants operators could never assure that everyone was a safe
distance away from machinery before start-up, and that the
standard must therefore be interpreted to require only some
signal before the equipment is started. The court concluded that
the difficulty of assuring that no one was dangerously near the
open tub of the machine was minimal because the supervisor had
only to look before starting the machine, and that the only
person in the vicinity was the miner. The court stated as follows
at 2 MSHC 1915, 1916 (1983):

 The regulation must be given a rational and reasonable
 interpretation. The certainty referred to must be
 viewed in light of the danger the machinery poses. As
 the danger increases, the operator's duty to assure
 clearance of persons also increases. But in any

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instance, the operator must be certain that no one will
be endangered by the equipment start-up.

 MSHA rejects the respondent's assertion that because the

scraper operated by Mr. Williams had an operable back-up alarm as
required by section 56.9087, Mr. Williams had no other duty or
responsibility to Mr. Wise. MSHA concludes that such a narrow
construction of section 56.9005, would negate its application.
MSHA agrees that section 56.9005, must be read in conjunction
with the back-up alarm requirements of section 56.9087, where
there is an obstructed view to the rear, and it concedes that the
scraper complied with this requirement. MSHA argues that Mr.
Williams knew that Mr. Wise was on the ramp behind his scraper,
and that he should have observed the greater duty of certainty to
assure himself that Mr. Wise was in the clear before backing up
the scraper. Without this certainty, MSHA concludes that Mr. Wise
was put in jeopardy in that he may have been incapacitated
because of a severe heart condition, and that a back-up alarm
would have provided him with no protection. MSHA finds support
for the duty owed Mr. Wise by Mr. Williams pursuant to section
56.9005, in the testimony of respondent's own witness, pan
scraper operator Boykin Durham, who testified that he had
received training and instructions from the respondent that he
should not move his equipment before locating the spotter, and
that if he could not see the spotter, he was to get off the
machine until he located him (Tr. 57). Mr. Durham confirmed that
his understanding of the respondent's instruction required him
not to back-up his machine without having the spotter in view,
and if the spotter were not in view he had to \"look all around
good before I'd back up\" (Tr. 60-61).

 Finally, MSHA argues that regardless of who was at fault

with respect to the accident, the Commission has consistently
held a mine operator liable for a violation without regard to
fault. Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir.
1982); Allied Products Co. v. FMSHRC, 666 F.2d 896, 893 (5th Cir.
1982); Miller Mining Co. v. FMSHRC, 713 F.2d 487, 491 (9th Cir.
1983); Asares, Inc.-Northwestern Mining Dept., 8 FMSHRC 1632
(1986).

                 Findings and Conclusions

Fact of Violation

 The respondent is charged with an alleged violation of

mandatory safety standard 30 C.F.R. 56.9005, because the pan
scraper operator Roosevelt Williams did not make certain that Mr.
Wise, who was acting as a spotter, was clear of the machine
before backing the scraper out of the ramp area in question.
Although section 56.9005, was subsequently revised and
promulgated as section 56.14200, effective October 24, 1988, 53
Fed. Reg. 32525, August 25, 1988, it was in effect at the time

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of the accident and the issuance of the citation on August 20,
1988, and it provided as follows: "Operators shall be certain, by
signal or other means, that all persons are clear before starting
or moving equipment."

 The revised standard, section 56.14200, provides as follows:

"Before starting crushers or moving self-propelled mobile
equipment, equipment operators shall sound a warning that is
audible above the surrounding noise level or use other effective
means to warn all persons who could be exposed to a hazard from
the equipment."

 I take particular note of the fact that the newly revised

section 56.9005, now promulgated as section 56.14200, does not
contain language requiring an equipment operator to be certain
that all persons are in the clear before starting or moving his
equipment. The current standard only requires an equipment
operator to sound a warning that is audible above the surrounding
noise level, or to use other effective means to warn all persons
exposed to an equipment hazard. Consequently, although section
56.9005, which was in effect at the time the citation was issued,
required an equipment operator to determine with some degree of
certainty that all persons are in the clear before moving the
equipment, this requirement was deleted from the revised
standard, and it now only requires that warnings be given. In
short, instead of requiring the operator to be certain of the
whereabouts of persons who may be exposed to a hazard of being
run over by the machine, the standard now only requires that
warnings be given. However, since section 56.9005, was in effect
at the time the citation was issued, I conclude and find that it
is applicable in this case.

 With regard to the safety of spotters, section 56.9058,

which was in effect at the time of the accident, provides that if
a truck spotter is used, he is required to be well in the clear
while trucks are backing into dumping positions. This standard
only applies to truck spotters, and since MSHA concedes that a
pan scraper is not a truck, I can only conclude that this
standard does not apply in this case. Although the newly revised
truck spotter standard, now section 56.9305, does contain a
provision that requires a truck operator to stop his truck if he
cannot clearly recognize the spotter's signal, which comes close
to MSHA's belief that section 56.9005 requires a scraper operator
to stop the scraper if he not certain that the spotter is in the
clear, the spotter standard clearly applies only to truck
drivers, and not to mobile equipment operators in general. I have
difficulty understanding why MSHA chose to limit vehicle stopping
requirements found in this particular standard to trucks and not
to mobile equipment in general, particularly in a surface mining
operation where heavy equipment such as pan scrapers, loaders,
and bulldozers, which often present problems for an operator in
terms of clearly seeing to the rear of the machine

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from his cab because of the physical configuration of the
machine.

 Although it appears from the comments of the rule makers

considering the promulgation of section 56.14200 (53 Fed. Reg.
32514), that the sounding of an audible warning with respect to
self-propelled mobile equipment means back-up alarms or other
appropriate mechanical devices which are an integral part of the
machine, there is absolutely no guidance or clarification as to
the meaning of the language other effective means. I would
venture a guess, however, that in any future cases litigated under
this standard as now written, MSHA will probably advance the
argument that the "other effective means" language in a
situation where a piece of equipment is not equipped with a
back-up alarm, requires the equipment operator to stop his
machine and then look around for spotters or other persons who
could be exposed to a hazard in order to warn them to stay in the
clear.

 The evidence in this case establishes that the pan scraper

operated by Mr. Williams was in compliance with the back-up alarm
requirements of section 56.9087. The scraper was equipped with an
operational back-up alarm which gave a loud and clear signal
while the scraper was operated in reverse, and it was sounding
when Mr. Williams backed the scraper up and ran over Mr. Wise.
However, the respondent here is charged with a violation of
section 56.9005, and not section 56.9087. Section 56.9005, as
applied to the facts of this case, required pan scraper operator
Williams to be certain, by signal or other means, that Mr. Wise
was in the clear before he proceeded to back-up the scraper.

 Although I find some merit in the respondent's observation

with respect to the term "warning" found in the caption to
section 56.9005, the language of the standard, and not the
caption, is controlling. Although the revised standard, section
56.14200, clearly contemplates that warnings be given by
equipment operators before moving the equipment, no such language
is found in cited section 56.9005, and I reject the respondent's
suggestion that the standard contemplated and required only a
warning by the equipment operator, rather than actual first hand
knowledge by the operator that all persons are in the clear.

 The evidence in this case further establishes that Mr.

Williams was operating the scraper along a rather confined and
restricted strip or ramp area approximately 200 feet long and 45
feet wide. In addition to Mr. Williams, scraper operator Durham
was also operating along the strip hauling in dirt, and due to
the restricted area, once the scraper dropped its load after
being driven in to the dumping location in a forward position, it
could not be turned around and driven out in a forward position,
and it had to be backed out and operated in reverse. Mr. Wise was
continuously exposed to a potential hazard when the scrapers were
backing out along the strip area in question.

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Mr. Williams testified that before returning to the strip area
with another load he observed Mr. Wise walking towards a water
cooler, and that another employee remarked to him that Mr. Wise
was "acting funny" and appeared to be over-heated. Upon his
return with another load, Mr. Williams passed by Mr. Wise as he
was walking toward the unloading area, and Mr. Wise waved at him
to proceed along to the unloading area (Tr. 9-11). Under these
circumstances, and given the fact that Mr. Wise may had a serious
heart condition, and indeed may have suffered a heart attack
shortly before he was run over, I believe that scraper operator
Williams had a duty to ascertain the whereabouts of Mr. Wise
before backing up his machine. Given the fact that Mr. Wise was
the only person on foot, and was clearly observed by Mr. Williams
when he passed him on his way in to dump his load, I do not
believe it would have been difficult for Mr. Williams to stop his
machine to make certain that Mr. Wise was in the clear, nor do
I find it unreasonable to expect him to do so, particularly where
the evidence establishes that the respondent had trained and
instructed the scraper operators to stop their machines and
ascertain the whereabouts of a spotter such as Mr. Wise before
moving the machine any further.

 The respondent's assertion that the use of a back-up alarm

on the scraper satisfied the requirements of section 56.9005,
that a signal be given before the machine was backed up is
rejected. While it may be true that the rationale requiring the
use of a back-up alarm pursuant to section 56.9087, when the
equipment operator has an obstructed view to the rear, is based
on the fact that the operator may be prevented from ascertaining
that persons are clear from the rear of the machine from his
position in the operator's cab because of the configuration of
the equipment which may obstruct his view to the rear, I cannot
conclude that the same rationale applies with respect to section
56.9005.

 In my view, section 56.9087, places a burden on the mine

operator to insure that all equipment which has an obstructed
view to the rear is equipped with a back-up alarm which can be
activated automatically or by the operator of the equipment by
simply sounding the alarm. In these circumstances, the equipment
operator is not obliged by the standard to be certain that all
persons are clear before he moves the machine. All he need to is
to sound the alarm. Section 56.9005, however, imposes a higher
personal duty on the equipment operator to make certain that all
persons are clear before moving the equipment. On the facts of
this case, where it is clear from the evidence that Mr. Williams
had an obstructed view to the rear and to the right of the
machine and could not see any objects to the rear for a distance
of some 30 feet from his position in the machine, where there was
no right view mirror on the machine, and where he could not see
Mr. Wise anywhere, there was clearly no way that Mr. Williams

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could be certain that Mr. Wise was clear of the machine from his
position at the controls at the time he moved it into reverse and
began to back out of the strip area. Under these circumstances,
while the use of the back-up alarm as a "signal" to Mr. Wise may
have complied with section 56.9087, I cannot conclude that it
complied with section 56.9005.

 The respondent's suggestion that no violation of section

56.9005, occurred because the scraper had been started for some
time before the accident occurred and that Mr. Wise was obviously
in the clear when it first started backing up because it backed
up approximately 49 feet before striking Mr. Wise is rejected. On
the facts of this case, it seems clear that Mr. Williams had no
idea where Mr. Wise was positioned after he dumped his load and
placed his scraper in reverse and began moving it to back out of
the dumping area. At that point in time, and before moving his
machine any further in reverse, Mr. Williams had a duty to
ascertain the whereabouts of Mr. Wise, and to personally have him
in view before backing up for any distance.

 The respondent's argument that when read together,

compliance with section 56.9087, satisfies the "other means"
language found in section 56.9005, and that it is entitled to
rely on either a back-up alarm or a flagman to be certain that
all persons are in the clear before any equipment is backed up in
a situation where the operator's view to the rear is obstructed,
is rejected. Without stopping the scraper and looking around for
Mr. Wise, there was no way that Mr. Williams could have been
certain with any degree of exactitude that Mr. Wise was in the
clear by relying solely on the back-up alarm. Given the court's
decision in Texas Industries, Inc., and the obvious intent of the
cited standard, I conclude and find that the degree of certainty
mandated by section 56.9005, is one of exactness and something
that is free of any doubt. The use of a back-up alarm as a means
of ascertaining whether anyone is free or clear from equipment
which is being backed up with an obstructed view to the rear of
travel falls short of compliance.

 In view of the foregoing findings and conclusions, I

conclude and find that a violation of section 56.9005, has been
established and the citation is therefore AFFIRMED.

Significant and Substantial Violations

 A "significant and substantial" violation is described in

section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood

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that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

 In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the

Commission explained its interpretation of the term "significant
and substantial" as follows:

      In order to establish that a violation of a manda-
 tory 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 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.

 In United States Steel Mining Company, Inc., 7 FMSHRC 1125,

1129, the Commission stated further as follows:

      We have explained further that the third element
 of the Mathies formula "requires that the Secretary
 establish a reasonable likelihood that the hazard
 contributed to will result in an event in which there
 is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
 1836 (August 1984). We have emphasized that, in accor-
 dance with the language of section 104(d)(1), it is the
 contribution of a violation to the cause and effect of
 a hazard that must be significant and substantial.
 U.S. Steel Mining Company, Inc., 6 FMSHRC 1866, 1868
 (August 1984); U.S. Steel Mining Company, Inc.,
 6 FMSHRC 1573, 1574-75 (July 1984).

 The question of whether any particular violation is sig-

nificant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).

 It seems clear to me that the failure of an equipment

operator to comply with the requirements of section 56.9005, and
in particular the operator of a pan scraper which has an inherent
obstruction of the view to the right rear of the machine from the
operator's compartment, to make sure that anyone who may be
behind the machine is in the clear, presents a reasonable
likelihood of an accident which one may conclude would result in
injuries of a reasonably serious nature. On the facts of this
case, the failure by the scraper operator to ascertain the
whereabouts of the spotter resulted in a fatality when the scraper ran

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over him after the scraper operator placed his machine in reverse
and began backing up without first ascertaining that the spotter
was free of the hazard. Under the circumstances, I conclude and
find that the inspector's "S&S" finding was correct, and IT IS
AFFIRMED.

Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business

 I conclude and find that the respondent is a small

independent construction contractor and that the civil penalty
assessment which I have made for the violation in question will
not adversely affect its ability to continue in business.

History of Prior Violations

 A computer print-out of the respondent's history or prior

violations (exhibit P-1) reflects that the respondent paid civil
penalty assessments in the amount of $227, for eight violations
which occurred during the period December 29, 1986, through December
28, 1988. Two of the violations were section 104(a) "S&S"
citations issued on July 14, 1988, and six were section 104(a)
"single penalty" non-"S&S" citations issued on July 14, and August
23, 1988. Although four of the violations were for violations of
the back-up alarm requirements of section 56.9087, none of the
violations concerned section 56.9005. I cannot conclude that the
respondent's history of prior violations is such as to warrant any
additional increases in the civil penalty assessment which I have
made for the violation which has been affirmed in this proceeding.

Good Faith Compliance

 The record reflects that abatement of the violation was

timely achieved by the respondent in good faith after a meeting
was held by the MSHA inspector with all equipment operators and
spotters during which the operators were instructed to sound
their back-up alarms before moving their equipment, and the
spotters were instructed to be aware of the equipment working in
the area, and that when back-up alarms are used, they were to
observe the direction in which the equipment is moving. The
operators were also instructed that if they lose sight of the
spotter, they were to stop their equipment and remain stopped
until the spotter was located.

Gravity

 For the reasons stated in my "S&S" findings, I conclude and

find that the violation was serious.

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Negligence

 The inspector's "moderate" negligence finding was based on

the fact that the back-up alarm on the scraper which ran over Mr.
Wise was activated and sounding loud and clear while the scraper
was operating in reverse, and that the accident victim Mr. Wise
had been instructed that after he signaled the scraper operator
where to dump, he was to get out of the way. Although Mr.
Williams testified that he was not specifically instructed to keep
Mr. Wise in view in backing up his scraper, the credible testimony
of scraper operator Durham, who was hired at the same time as Mr.
Williams, reflects that they received training from the respondent
and were specifically instructed not to move their scrapers unless
they had the spotter in view, and if the spotter was not in sight,
they were to blow their horn. If the spotter still did not appear,
they were instructed to stop their equipment until they could locate
the spotter and have him move to an area where he could be seen.
Mr. Durham confirmed that this company rule was discussed two or
three times a month during regular safety meetings held
continuously up to the time of the accident.

 In addition to Mr. Durham's testimony, I take note of the

fact that the inspector believed that pan scrapers usually are
operated in a forward cycle while loading and unloading, and that
the circumstances under which the scraper in question was
operating in a constricted ramp area where it was required to
back-up for some distance were unique. I also take note of the
inspector's accident investigation findings that the respondent had
an MSHA approved training plan in effect at the time of the
accident, that it was in compliance with the training requirements
of Part 48, Title 30, Code of Federal Regulations, and that the
accident victim had received hazard training and the dangers of
the job had been explained to him. Although the cause of the
accident may have been the failure of Mr. Williams to determine
that Mr. Wise was clear of the scraper before he backed it up, and
his negligence may be imputed to the respondent who is liable for
the violation without regard to fault, I take further note of the
inspector's finding that a contributing factor to the accident may
have been the victim's lack of alertness. Under all of these
circumstances, the inspector's moderate negligence finding IS
AFFIRMED, and I conclude and find that the violation resulted from
the respondent's failure to exercise reasonable care and that this
constitutes ordinary negligence.

 On the facts of this case, where the evidence establishes

that the respondent had trained and instructed its equipment
operators and spotters to avoid the kind of hazard which led to
the unfortunate accident in question, I believe it is appropriate
to take these factors into consideration in mitigating any civil
penalty which should be assessed against the respondent for the

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violation in question. See: Allied Products Company v. FMSHRC,
666 F.2d 890, 896 (5th Cir. 1982); Nacco Mining Co., 3 FMSHRC
848, 850 (April 1981); Marshfield Sand & Gravel, Inc., 2 FMSHRC
1391 (June 1980); Old Dominion Power Co., 6 FMSHRC 1886 (August
1981); Secretary of Labor v. Marion County Limestone Company,
LTD., 10 FMSHRC 1683 (December 1982).

                Civil Penalty Assessment

 On the basis of the foregoing findings and conclusions, and

taking into account the requirements of section 110(i) of the
Act, I conclude and find that a civil penalty assessment in the
amount of $1,000 is reasonable and appropriate for the violation
which has been affirmed in this case.

                          ORDER

 The respondent IS ORDERED to pay a civil penalty assessment

in the amount of $1,000, for a violation of mandatory safety
standard 30 C.F.R. 56.9005, as stated in section 104(a) "S&S"
Citation No. 3254881, August 20, 1989. Payment of the penalty is
to be made to MSHA within thirty (30) days of the date of this
decision and order, and upon receipt of the payment, this matter
is dismissed.

                          George A. Koutras
                          Administrative Law Judge