Changing the Direction of MSHA
A recent groundbreaking decision from the Federal Mine Safety and Health Review Commission may affect the Mine Safety and Health Administration’s ability to issue citations to operators for independent contractor violations. The Federal Mine Safety and Health Review Commission issued a decision which could greatly affect the traditional scorched earth approach that MSHA has historically taken when issuing citations.
In Secretary of Labor v. Twentymile Coal Company, Twentymile hired a contractor to remove clay from a refuse pile. The contractor operated a pan scraper and a service truck to perform its duties. Twentymile did not own, operate, or maintain the equipment used by the contractor to remove the clay.
Enter MSHA. The inspector issued six citations to the independent contractor based on an inspection of the service trucks. The inspector then issued same six citations to Twentymile. The inspector testified that he thought it was appropriate to cite Twentymile in order to address a problem he perceived with contractor violations at the mine and because he thought that it would encourage Twentymile to bring more attention to the violations.
Twentymile challenged the six citations and the administrative law judge affirmed the six citations based on the inspector’s belief that there was a problem with contractor violations at the mine and that citing Twentymile would bring more attention to the problem.
Twentymile then filed a petition, asking the commission to review the judge’s decision. On review, the commission issued a groundbreaking decision affecting MSHA’s ability to issue citations to both owner-operators and independent contractors for violations of the independent contractor.
Citation considerations
In its decision, the commission noted that since the passage of the Mine Act, the commission and courts have consistently recognized that in instances of multiple operators, the secretary may proceed against both an owner-operator and an independent contractor for violations of independent contractors. However, the commission reviewed the ALJ’s decision regarding the citation of the production operator by considering the following factors:
Which party was in the best position to affect safety matters; Whether the production operator had day-to-day involvement in the activities in question; Whether the production operator contributed to the violations committed by the independent contractor; and Whether the production operator’s actions satisfy any of the criteria set forth in the secretary’s enforcement guidelines. The guidelines provide that enforcement actions maybe taken against a production operator for violations committed by its independent contractor in any of the following four situations: When the production operator has contributed by either an act or an omission to the occurrence of the violation in the course of the independent contractor’s work; or When the production operator has contributed by either an act or omission to the continued existence of a violation committed by an independent contractor; or When the production operator’s miners are exposed to the hazard; or When the production operator has control over the condition that needs abatement.
The commission’s decision
Based on these factors, the commission held that there was an insufficient basis for issuing the citations to the production operator in addition to the independent contractor. More specifically, the commission found that the independent contractor was in the best position to prevent the violations in question. This was based largely on the fact that the independent contractor maintained and owned all the equipment that was the subject of the citations. Because the independent contractor was experienced in performing its duties and was performing its duties autonomously, the commission held the factors weighed in favor of holding the independent contractor solely accountable for compliance under the Mine Act.
To support its decision to vacate the citations, the commission also found that Twentymile did not have a significant, continuing involvement in the work specifically being performed by the independent contractor. No Twentymile employees worked at or near the area the subject contractor was working in, although Twentymile employees did check on the progress of the work being performed and performed general safety audits. The commission stated that “[p]unishing a production operator for such steps taken to ‘ensure’ contractor compliance is contrary to the intent of the Mine Act . . . ”
The commission found that the record established that Twentymile did not directly contribute to the violations that were involved in the citations — by either act or omission. The commission expanded that in order for a production operator to contribute to a violation through an omission, the omission must be a significant one. Without the “significant” threshold, the commission stated, the production operator could be found to have contributed to a violation in virtually every circumstance.
In further support of its decision, the commission found that (1) Twentymile took reasonable measures to ensure that the contractor complied with MSHA standards; (2) Twentymile employees were not threatened in any significant way by the hazards posed by the violations at issue; and (3) Twentymile had no significant control over the conditions requiring abatement. Significantly, the commission stated: “If the secretary were found to have met the control criterion with regard to Twentymile in this case based on the contractual right to remove [the contractor’s] violative equipment, then virtually every production operator could automatically be found liable for its independent contractor’s violations . . .”
In the Twentymile decision, the commission again gave meaning to the above referenced factors used in determining if owner-operators should be cited for violations of an independent contractor.
Past decisions have held owner-operators liable seemingly by virtue of the mere fact that an independent contractor is on a mine site owned or managed by an operator. The Twentymile decision takes a step back from this blanket approach to issuing citations, with an end result being a well thought out and meaningful case-by-case analysis of owner-operator liability.