Contractor Liability on 1 Contractor Liability on Mine Property South Central Mine Safety and Health Conference March 28, 2018 March 6, 2017 ▪ Las Vegas Presented by: Bill Doran Washington, DC 202-263-0246

Times Have Changed Much Different Discussion 20 Years Ago. Old School Template for Managing Contractors: Stay away from your Contractor; Do not tell your Contractor what to do or how to do it; Do not direct your Contractor’s employees; Do not get involved in Contractor’s training. Not That Simple Anymore.

3 A Short Story Contractor Replacing sections of Kiln Shell at Cement Plant; Signage and tape prohibiting Operator entry; Open inspection door covered with plywood; Contractor requested additional clean-out work by operator; Contractor re-assumed control of work area after clean-out work; Contractor employee falls through opening while removing plywood.

Results of this Accident 4 Results of this Accident MSHA Dual Citation -- 30 C.F.R. § 56.20011 Special Investigation 110(c) Charges Civil Cases Against Mine Operator

Independent Contractor Legal Definition 5 Independent Contractor Legal Definition Person or Company that Performs Services Using Its Own Methods Tools Not Subject to Mine Operator Control Except as to Results

Contractor Relationship to Operator 6 Contractor Relationship to Operator An Independent Contractor: Is not an Employee May Create Liability Contractor’s Employees Operator’s Employees Third Parties

Limiting Civil Liability 7 Limiting Civil Liability

Civil Liability: The Basics 8 Civil Liability: The Basics Contractors are Business Invitees Property Owner Has Duty of Care To Not Injure Invitee To Warn of Hazards  Hidden Hazards

Hidden Hazards Good faith effort to identify all of the possibilities. 9 Hidden Hazards Good faith effort to identify all of the possibilities. Hazards that are not immediately obvious. Sometimes Easier Said than Done

Civil Liability: More Basics 1010 Civil Liability: More Basics When a Duty of Care is deemed to be violated: Contractor Employees May Sue Mine Operator for Injuries; or Mine Operator Employees May Sue Contractor for Injuries.

Workers Compensation Limitations 1111 Workers Compensation Limitations Only Limits Employer’s Liability to Its Own Employees Employees are Free to Sue Third Parties

Limiting Civil Liability for Contractor Actions: Traditional Approach 1212 Limiting Civil Liability for Contractor Actions: Traditional Approach Mine Owner: Discloses Hazards on Property Tries to Remain Separate Mine Owner Avoids: Directing Contractor Work Telling Contractor How to be Safe

1313 Limiting Civil Liability for Contractor Actions: Current Best Practices Contractor Pre-Screening Require Safety Compliance in Contract Review Contractor Safety Program Verify Contractor Training in Place

Limiting Enforcement Liability Under the Mine Act 1414 Limiting Enforcement Liability Under the Mine Act

Independent Contractor on Mine Property 1515 Independent Contractor on Mine Property Must Comply with MSHA regulations “Miner” Status applies to Contractor personnel  Individual working in a Mine Training exceptions for work that is not “frequent or extended.”

Independent Contractor on Mine Property 1616 Independent Contractor on Mine Property “Operator” Status Applies if Contractor: Operates, Controls or Supervises Part of a Mine Or Is an Independent Contractor Performing Services or Construction at a Mine

Potential Enforcement Liability for All “Operators” on Mine Property 1717 Potential Enforcement Liability for All “Operators” on Mine Property Dual Citations Allegations of Negligence Assessment of Civil Penalties Prosecution of Agents Under Section 110(c)

Limiting Enforcement Liability 1818 Limiting Enforcement Liability Contractor’s Goal: Avoid Enforcement Action Against Self and Mine Operator Maintain Good Relationship with Mine Operator Operator’s Goal: Avoid Imputed Liability for Contractor Actions Exposure to Contractor’s Work Area Involvement in Contractor’s Work

Access to Contractor Work Areas 1919 Access to Contractor Work Areas

How Does MSHA Make These Dual Enforcement Decisions? 2020 How Does MSHA Make These Dual Enforcement Decisions? Mine Operators and Contractors both potentially Responsible as Operators. The Level of Negligence can vary depending on the knowledge and capacity of the contractor and mine operator. Ultimately, Dual Liability Enforcement is Controlled by MSHA Policy.

MSHA Contractor Enforcement Policy 2121 MSHA Contractor Enforcement Policy Cite Only Contractor, Unless Mine Operator: Contributed to Violation Contributed to Continuation of Violation Controls the Means of Abatement; or Employees Were Exposed

Implementation of MSHA Policy 2222 Implementation of MSHA Policy Trend in Accident / Injury Cases is to Cite Contractor and Mine Operator; For instance, 3 of 5 MNM Contractor Fatal Accidents in 2016 Resulted in Dual Citations; Consistent theme was exposure of operator / contractor’s personnel to the other’s workplace hazards.

Implementation of MSHA Policy 2323 Implementation of MSHA Policy Operators (in theory) may avoid Citation or Limit Negligence by demonstrating good faith efforts to: Require; Assist; and Enforce Contractor Compliance

Current Law Regarding Dual Citations 2424 Current Law Regarding Dual Citations Twentymile and Speed Mining Cases Despite Policy, MSHA has broad discretion in deciding whom to cite for contractor violations; Decisions to cite mine operator in contractor cases are generally not reviewable.

Recommended Best Practices for Mine Operators 2525 Recommended Best Practices for Mine Operators Before Contractor Work: Choose Responsible Contractor Check MSHA Violation History Check Injury / Illness Rate Require MSHA Identification Provide Written Materials on MSHA Compliance Require Planning for Safety Verify MSHA Training Provide Site Specific Hazard Training

Contractor Safety Handbook Catch 22? 2626 Contractor Safety Handbook Catch 22? Directing Contractor v. Encouraging Safe Work Practices MSHA Enforcement Trend Has been to Evaluate Overall Management / Oversight of Contractors Mine Operators Tend to Lean in Direction of Action that Enhances Safety of their Personnel. More Information is Better

Recommended Best Practices for Contractors 2727 Recommended Best Practices for Contractors Understand the Safety Parameters of the Job; Know MSHA Requirements; Obtain MSHA Legal Identification; Conduct Required MSHA Training; Keep Operator Informed on Training; Report Injuries and Accidents to MSHA and Mine Operator; Communicate with Mine Operator Regarding potential hazardous conditions; and Maintain required compliance records.

Contractor Liability on 2828 Contractor Liability on Mine Property South Central Mine Safety and Health Conference March 28, 2018 March 6, 2017 ▪ Las Vegas Presented by: Bill Doran Washington, DC 202-263-0246