When can MSHA cite independent contractors for violations on mine property? And what is the likelihood MSHA will cite mine operators for contractor violations? These are questions that we are often asked as mine safety lawyers. The answer to the first question is fairly straightforward – the Federal Mine Safety and Health Act grants MSHA the authority to issue citations directly to independent contractors at mines for violations that are within their area of responsibility. MSHA almost always will cite a contractor where the inspector concludes the contractor caused the violation or bore some responsibility for continued exposure of miners to the hazard.
As for when MSHA will hold mine operators responsible for contractor violations, things are now less clear. The Mine Act is a strict liability statute. Operators can be cited regardless of whether they themselves were negligent. Under the Mine Act, MSHA can cite contractors, mine operators, or both for contractor violations. Even though the agency has issued policy guidance on what factors it considers in determining when to hold operators responsible in contractor cases, it can be difficult to predict who MSHA will charge in some cases. MSHA has always been more likely to cite both in cases involving injuries or other serious types of violations.
In the last couple of years, two significant decisions issued by federal courts have complicated matters further by seemingly foreclosing operators’ ability in many situations to challenge agency charging decisions. In Twentymile Coal Co. and Speed Mining , the D.C. Circuit and the Fourth Circuit Courts of Appeals, respectively, have ruled that MSHA has virtually unfettered authority to cite production operators for contractor violations. The courts are now saying that they will not question MSHA’s decisions on who to cite for contractor violations because the Courts do not believe Congress gave them the authority to do that. It is too soon to tell for sure what impact this new development may have on MSHA’s decisionmaking, but it certainly merits close attention.
This article will review current issues relating to independent contractor violations, including these recent decisions, and MSHA’s policy guidance, which remains in effect. But first, we will discuss briefly who is a contractor under mine safety law and we will outline some steps for reducing the potential for civil liability that can arise where contractors are working at mines.
Who is an Independent Contractor?
In the Mine Act, Congress authorizes MSHA to issue citations to mine operators and specifically drafted the definition of “operator” to include “any independent contractor performing services or construction at [a] mine.” Therefore, independent contractors are responsible for violations of the mine safety laws, just as other types of mine operators are.
In determining who is an independent contractor under the mine safety law, MSHA and the courts look to the same general factors that are considered under other regulatory schemes where contractor status can be an issue. Basically, an independent contractor is one who does the following:
- Contracts with the mine owner or other operator to do work at the mine;
- Works at the mine using its own methods;
- Uses its own equipment and tools;
- Is not subject to the day-to-day direction and control of the mine owner or production operator, except as to product, timing or results; and
- Is not otherwise paid or treated as an employee of the owner or production operator.
MSHA requires independent contractors at mines to obtain special legal identification numbers that identify them as operators separate and apart from the mine where they may be working. A contractor can be cited, however, whether or not the contractor has taken the necessary steps to obtain its legal identification number.
Civil Liability
In addition to liability under the mine safety laws, contractors on mine property can incur or create for others civil liability – just as they can while working on non-mine property. While such potential liability cannot be eliminated entirely, there are things that can be done to limit it.
Contractor personnel working at a mine are business invitees. The property owner/operator has a duty of care toward those invitees on its worksite. That duty of care includes warning invitees of hazards and taking reasonable steps to prevent injury or illness. While workers’ compensation laws will shield the contractor from liability for injuries to its own employees (under most circumstances), contractor personnel may be able to sue the production operator for injuries at the mine. Likewise, production operator personnel can sue the contractor for injuries it may have caused them.
There are things that can be done to try to limit such liability. One important measure is warning of potential hazards (through training and signs). Site specific hazard training provided to contractors under MSHA’s regulations can serve this function, but more may be required where additional risks for injury may arise.
Another important measure is to maintain an appropriate degree of separation between operator and contractor. In order to limit its own liability, the production operator should avoid directing the contractor’s work. Certainly, the production operator needs to require the contractor to work safely, which should be an express requirement of the contract. This should include the requirement to follow all applicable safety laws. But the production operator needs to be careful not to get involved in the day-to-day direction of the contractor as to how to do the work.
The production operator and contractor should each verify that the other has workers’ compensation protection and other adequate insurance and that each entity’s liability insurance appropriately covers the other. Additional liability insurance may be a good measure, depending on the circumstances. A contractual waiver of liability and promise of indemnification should also be included in the agreement with the contractor.
Regulatory Responsibilities
Contractors who do not work exclusively at mines face the challenging reality that, when they are on mine property they are subject to MSHA’s requirements, and when they are off mine property, they are under OSHA. This dual regulation can be confusing as the different agencies have very different enforcement policies and regulatory requirements. Yet, that is the law.
When they are on mine property, contractor employees are miners. In most instances, they will need full MSHA training. They also will need to follow all applicable MSHA regulations. The contractor will be subject to MSHA inspections, with possible citations and orders issued and penalties assessed. Agents of the contractor (e.g., supervisors and foreman) can receive fines for knowing violations, just as agents of owners and production operators can.
Production operators have historically faced the potential for liability for contractor violations, and their agents have also been potentially personally responsible for knowing violations involving contractors as well. With recent developments in the courts, it may be increasingly difficult to successfully challenge MSHA’s enforcement decisions with respect to holding production operators responsible for contractor violations of the law.
MSHA has long had policy guidance in place indicating that it will cite only the contractor, unless the owner or production operator:
- Contributed to the violation;
- Contributed to the prolongation of the violation’s existence;
- Controls the means of curing the violation; or
- Had employees who were exposed to the hazard caused by the contractor’s violation.
The trend has been that, in serious cases in particular, MSHA would cite the contractor, the production operator and perhaps the mine owner for the same violation. Such citations would be issued in lesser cases as well, depending on the circumstances. The owner/production operator could often successfully prevent a citation or defend against it by demonstrating vigorous efforts to require, assist and enforce contractor compliance.
With the Twentymile and Speed Mining decisions, two courts have now declared MSHA to have broad discretion in deciding whom to cite for contractor violations. Basically, the courts have said that the Mine Act provides no meaningful standard by which to judge MSHA’s contractor enforcement decisions, and that, therefore, the courts cannot review MSHA’s assertion of what essentially is prosecutorial discretion as to who to pursue for a violation. The cited parties can certainly challenge whether there was a violation in the first place and whether MSHA was correct in the severity of the hazard and negligence alleged, as well as the amount of penalty. But what will be more difficult to challenge will be whether MSHA was right to cite the owner/production operator rather than, or just, the contractor.
This does not mean that owners, production operators and contractors have no recourse. There may still be cases where MSHA’s decision on whom to cite is so inconsistent with the facts that the agency has clearly exceeded the bounds of even broad prosecutorial discretion. In such a case, the Federal Mine Safety and Health Review Commission and courts may still agree to review and overturn MSHA’s enforcement decision.
Protective Measures
Apart from determining how to deal with a citation once issued, there are a number of preventative measures that can be taken to avoid issuance of a citation in the first place. The owner/production operator should:
- Take care in choosing responsible contractors with a proven track record
- Require contractors to provide MSHA identification
- Check the contractor’s MSHA record
- Verify all contractor employees have received required MSHA training
- Contractually require the contractor to comply with all safety laws
- Provide written materials to the contractor on MSHA requirements
- Provide hazard training
- Avoid directing the contractor’s work
- Record any enforcement of contractor safety requirements
- Stop unsafe work immediately
Contractors should take the following precautions:
- Learn MSHA responsibilities
- Obtain MSHA legal identification
- Train employees as MSHA requires
- Keep the owner/production operator informed of training
- Report any injuries to MSHA and the owner/production operator immediately
- Insist on employee safety
- Make records of enforcement of safety rules
As with other areas of the law, there is no full proof way to entirely eliminate potential legal liability for contractors’ safety violations. However, where the contractor has expressly accepted responsibility for following the safety laws (and makes a good faith effort to act appropriately) and where the operator actively encourages its contractors to perform safely (without going so far as to direct their work), liability risks can be controlled.
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