Liability for Independent Contractor Violations: Why a Mine Operator should ensure Independent Contractors are compliant with MSHA Regulations

 

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By: Matthew DeAtley

Nearly every mine operator will have an independent contractor working in their site at some point, whether the contractor is at the site to drill, blast, crush, or even change a tire. Most contractors are subject to MSHA regulations and should the contractor violate an MSHA regulation, MSHA can hold the mine operator similarly liable for the violation. In this article, I will first briefly describe the point at which a contractor becomes subject to MSHA jurisdiction. Next, I will cover MSHA’s ability to cite both the contractor and the mine operator and the criteria an inspector will use in deciding to issue citations to both the contractor and mine operator. Finally, I will list a few strategies for mine operators to protect against liability for contractor violations.

MSHA’s Jurisdiction Over Independent Contractors

                  The same sentence of the Mine Act that gives MSHA jurisdiction over mine operators also gives MSHA jurisdiction over contractors performing work at a mine. Specifically, the Mine Act subjects every “operator” to MSHA regulation, but defines “operator” as “any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine”.[1]

                  By this definition, any independent contractor performing services or construction at a mine site is subject to all the same regulations as any mine operator, including training requirements and documentation. Certain courts have found that any contractor performing services at a mine will be under MSHA jurisdiction, while other courts (including the 9th Circuit) have found that the contractor must have a “continuing presence” at the mine to be subject to MSHA jurisdiction.[2] Examples of situations where there was not a “continuing presence” at a mine (and putting the contractor outside MSHA jurisdiction) include a power company entering a mine to read the meter or a steel company delivering steel for use at the mine site.

Citing an Operator for an Independent Contractor’s Violation

                  The Mine Act makes the mine operator principally responsible for MSHA compliance.[3] Further, since the Mine Act is a strict liability law, MSHA can hold the operator liable — even absent a showing of fault. Putting both laws together, it means that MSHA can issue a citation for a violation committed by a contractor to 1) the independent contractor, 2) the mine operator, or 3) both.[4]

                  Although MSHA has the right to cite both the contractor and the operator, it is MSHA’s policy to only cite the contractor for the contractor’s violation of the Mine Act.[5] However, an inspector will still cite the operator if the inspector believes the operator is in some way responsible for the violation. The Program Policy Manual sets out four criteria to assist an inspector in determining whether to issue a citation to both the contractor and the operator:

1)     The operator has contributed to the occurrence of the independent contractor’s violation;

2)     The operator has contributed to the continued existence of the independent contractor’s violation;

3)     The operator’s miners are exposed to the hazard created by the independent contractor’s violation; or

4)     The operator has control over the condition that is in the violation.[6]

If any of these criteria are satisfied, the inspector will likely issue a citation to the operator in addition to the citation issued to the contractor.

Strategies to Reduce the Risk of Concurrent Citations

                  Generally, operators can reduce the risk of liability by separating the operator and contractor’s work as much as possible during interactions at the mine site. Operators should also include protective contract provisions to limit liability for contractor’s violations. The following are a few steps operators can take to limit liability:

1)     Require the independent contractor to be just that – independent. To limit the risk of contributing to a violation, do not allow the contractor to use mine assets, including equipment, shops, or tools.

2)     Limit supervision to evaluating progress and compliance with contract requirements. The less control the operator has over the contractor, the less MSHA will see the operator contributed to the violation or controlled the condition. Also, perform limited safety checks on contractor equipment, with exception to contractor equipment that could present a hazard to miners. The goal is to separate the operator and the contractor, as much as possible, and protect operator from contractor violations.

3)     Fence off, tape off, or otherwise separate the contractor’s work area and prohibit miners from entering the contractor’s work area. By doing so, operators will minimize exposure to any safety hazards created by a contractor’s violation.

4)     Require contractors to obtain their own MSHA identification number and maintain a register for contractors. Operators are required to keep a register of their contractors with each contractor’s 1) trade name, business address, and business telephone number; 2) a description of the nature of the work to be completed and where at the mine the work is performed; 3) the contractor’s MSHA ID number, if any; and 4) the contractors address of record for service of citations or other documents.[7] Requiring contractors to have an MSHA ID number alerts MSHA to the contractor and eases recordkeeping burdens for both parties (although regulations do not require contractors to obtain MSHA ID numbers) 

5)     Ensure contractor compliance with MSHA training requirements, Part 50 reporting, and recordkeeping requirements. Mine operators must provide and document site-specific Hazard Awareness Training for all contractor employees. Operators should also require contractors to verify Part 46/48 training requirements for all employees at the mine site, as no amount of distancing can isolate an operator from allowing a training violation to occur or continue.

6)     Require contractors to comply with Mine Act and MSHA regulation when drafting the contract for work, including provisions for the contractor to verify it will produce, file, and maintain all required reporting and documentation. Such provisions will allow the operator deniability and show that the mine operator will not assist the contractor except where the contractor’s actions would place miners in harm’s way.

7)     Include MSHA-specific indemnifications. A quirk of operator/contractor liability is that an operator cannot challenge MSHA’s decision to cite an operator for a violation — only whether the violation existed and the proposed penalty amount. Requiring the contractor to indemnify the operator against MSHA enforcement directed at violations committed by the contractor can help alleviate potentially large fines to the operator imposed by MSHA in cases where the violation exists and the penalty amount cannot be reduced.

[1] 30 USC § 802(d).

[2] Old Dominion Power Co. v. Donovan, 772 F.2d 92, 97 (4th Cir. 1985).

[3] 30 USC § 801(e).

[4] MSHA Program Policy Manual, III.45-1; Secretary of Labor v. Twentymile Coal Co., 456 F.3d 151, 154-55 (D.C. Cir. 2006).

[5] MSHA Program Policy Manual, III.45-1.

[6] MSHA Program Policy Manual, III.45-1.

[7] 30 CFR § 45.4(a).