Why operators, contractors are tied together on safety

By and |  October 26, 2022
Headshots: Bill Doran and Margo Lopez

Doran and Lopez

We often hear from mine operators who are frustrated that their substantial best efforts to develop and maintain a strong safety compliance record were undermined by conditions and practices created by contractors working on their property.

This frustration is especially acute when a contractor-produced condition or practice results in a citation being issued to the mine operator, as well as the contractor. Mine Safety & Health Administration (MSHA) inspectors often tell operators they were included in the enforcement action because they are in the best position to induce compliance on the part of contractors.

While it is certainly true the majority of contractors understand they have a vested interest in meeting mine operators’ compliance expectations – and that they work hard to produce a safe workplace that limits exposure to citations and orders – the continuing number of dual citations MSHA issues indicates there can still be some disconnect.

With that said, there are steps operators and contractors can take to improve these situations. Many of the steps revolve around better communication.

The Federal Mine Safety & Health Review Commission and the courts confirmed over the years that MSHA has broad discretion under the Mine Act in deciding who to cite for contractor violations. Notwithstanding this broad discretion, agency policy delineated criteria that guides enforcement decision-making related to operator liability for contractor violations. Specifically, that policy directs the issuance of a citation to the mine operator in these circumstances:

• The mine operator contributed to the contractor’s violation.

• The mine operator contributed to the continuation of the contractor’s violation.

• The mine operator controls the means of abating the contractor’s violation.

• The mine operator’s employees were exposed to the hazard created by the violation.

In issuing a citation to operators, MSHA evaluates negligence based on the operator’s specific knowledge and actions.

Setting expectations

To avoid application of these criteria, it is critical that operators set expectations for contractors and communicate clearly.

This starts with the initial engagement. Operators must vet every contractor that will conduct work on mine property. This should include a review of their violation and injury and accident history.

Many operators provide prospective contractors with a safety audit document that requests compliance history, as well as information about pertinent safety procedures, training, certifications and licenses. The focus is to determine if the contractor has the ability and commitment to meet the operator’s safety goals.

Before bringing a contractor on property, many operators also provide a contractor safety manual that reinforces, among other things, the expectations with respect to required training, workplace examinations, personal protective equipment, and injury/accident reporting.

With respect to training, these manuals usually stipulate that operators require contractors to provide verification of ongoing training. This is important because contractor training gaps are a source of dual citations, especially when mine operator personnel are exposed to untrained contractor personnel.

This information exchange is not a one-way street. To establish accountability on both sides, it is important for contractors to ask mine operators what they expect so disputes or confusion does not develop during work.

Contractors should know if there are access restrictions throughout the operation so they can avoid hazards that are not immediately obvious. Similarly, there must be consensus regarding who’s responsible for workplace exams in particular locations and how adverse conditions will be reported and addressed.

Operators and contractors need experienced personnel to act as liaisons to keep the lines of communication open and respond to unsafe conditions or practices as they develop. The days of keeping one’s self completely remote from the activities of the other are gone. While operators and contractors certainly should not direct the activities of the other, it is crucial that there be a framework for a cooperative safe workplace.

If problems are identified in the execution of that framework – and hazardous situations develop – they need to be pointed out immediately. Under the Mine Act, everyone is in this together.

Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins.

Featured Photo: Juan Enrique/iStock/Getty Images Plus/Getty Images

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