Rock Products

NOV 2014

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ROCK products • NOVEMBER 2014 40 LAW I n a recent decision, Judge Thomas McCarthy, an Administrative Law Judge for the Federal Mine Safety and Health Review Com‐ mission (Commission), confirmed that the Mine Safety and Health Administration (MSHA) has unfettered discretion to issue an im‐ minent danger order against a mine operator for its independent contractor's violations of the Mine Safety and Health Act of 1977 (the Mine Act) and MSHA regulations. See Cloverlick Coal Co., LLC v. MSHA, No. KENT 2012‐669R (ALJ Aug. 5, 2014). Judge McCarthy concluded, based upon Commission and U.S. Court of Appeals case law, that MSHA's decision to issue an im‐ minent danger order or, for that matter, any other type of cita‐ tion against a mine operator for an independent contractor's violations is unreviewable by the courts, even when MSHA de‐ parts from its own enforcement policies. Simply put, mine operators will be unable to challenge MSHA's decision to take enforcement action against them for violations committed by independent contractors on the grounds that it should have been issued to the contractor – although the mine operator can still challenge the existence of the violation or the proposed penalty. The same is true with respect to citations issued to contractors for violations committed by the production operator or their independent contractors. In other words, no matter whether you are a contractor or an operator, the question of whether MSHA issued a citation to the proper party simply cannot be reviewed by a court. As a result, mine operators and contractors should develop and examine their contractual relationships to protect their interests in the event that they are held liable for the violations created by the other party. While neither party can contractually waive its li‐ ability under the Mine Act, it can require each party to pay the costs of defending against MSHA citations. The operator can also require that contractors take other measures to reduce the like‐ lihood that a citation will be issued in the first instance. Responsibility for Violations Every "operator" is subject to the requirements of the Mine Act and has "primary responsibility" for preventing unsafe mining conditions. 30 U.S.C. § 801(e). "Operator" is defined as "any owner, lessee, or other person who operates, controls, or su‐ pervises a coal or other mine or any independent contractor performing services or construction at such mine." 30 U.S.C. § 802(d). Based upon this broad definition, courts have routinely con‐ cluded that MSHA may define an "operator" to include the pro‐ duction operator, the independent contractor, or both for purposes of enforcing the requirements of the Mine Act and, therefore, may cite a production operator, an independent con‐ tractor, or both for a MSHA violation found during an inspection. Courts have also held that a production operator can be held liable for MSHA violations created by its independent contrac‐ tors, based on the understanding that the Mine Act assesses li‐ ability without regard to the individual operator's fault. Thus, production operators may be found "jointly and severally liable" for the hazardous conditions created by their independent con‐ tractors even when they are not aware of the existence of a viola‐ tion and are not supervising the day‐to‐day work. In coming to this conclusion, the courts reasoned that the pro‐ duction operator is generally in continuous control of condi‐ tions at the mine and is more likely to know the federal safety and health requirements. Courts have also concluded that a production operator can be cited for independent contractor violations because the production operator could otherwise evade its compliance responsibilities by using independent contractors for most of its work. Moreover, courts have further noted that production operators possess ultimate authority over independent contractors – re‐ taining, supervising, and even dismissing them, if necessary, and that holding production operators liable for independent con‐ tractor violations encourages them to consider the safety records of their independent contractors before contracting with them. While operators had historically been able to rely on language in the Program Policy Manual, the decisions of the appellate courts, followed by Judge McCarthy's decision, make it clear that no court will even consider MSHA's enforcement guide‐ lines in future challenges. Moreover, MSHA may take enforce‐ ment actions against an operator for violations committed by its independent contractors regardless of the circumstances that led to the violation in the first place. Stronger Contract Provisions Will Be Required When Using Independent Contractors. Imminent Danger Orders By Nickole Winnett Nickole W innett is a senior associate in the Washington, D.C. Region Of- fice of Jackson Lewis P.C. and is a member of the Workplace Safety and Health practice group. She heads the Workplace Violence sub- specialty practice group and is a member of the Process Safety Management sub-specialty practice group. Winnett is also co-author of Jackson Lewis' OSHA Law Blog.

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