1. Contractor Liability on1
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

2. 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. 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.

4. Results of this Accident4
Results of this Accident
MSHA Dual Citation
-- 30 C.F.R. §
Special Investigation
110(c) Charges
Civil Cases Against Mine Operator

5. Independent Contractor Legal Definition5
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

6. Contractor Relationship to Operator6
Contractor Relationship to Operator
An Independent Contractor:
Is not an Employee
May Create Liability
Contractor’s Employees
Operator’s Employees
Third Parties

7. Limiting Civil Liability7
Limiting Civil Liability

8. Civil Liability: The Basics8
Civil Liability: The Basics
Contractors are Business Invitees
Property Owner Has Duty of Care
To Not Injure Invitee
To Warn of Hazards
 Hidden Hazards

9. 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

10. 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.

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

12. 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

13. 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

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

15. 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.”

16. 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

17. 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)

18. 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

19. Access to Contractor Work Areas
1919
Access to Contractor Work Areas

20. 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.

21. 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

22. 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.

23. 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

24. 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.

25. 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

26. 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

27. 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.

28. 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