No-Fault Liability Extended to Independent Contractors
The District of Columbia Circuit Court of Appeals has ruled that an independent contractor may be held liable for a violation on mine property even if the contractor was not at fault. This unprecedented ruling affirms a decision of the federal Mine Safety Review Commission in Ames Construction, Inc. v. Federal Mine Safety and Health Review Commission and Secretary of Labor (No. 11-1303. April 17, 2012).
Historical No-Fault Liability of Mine Operators
It has long been understood that the Federal Mine and Health Safety Act makes mine operators liable for any and all violations on mine property. A mine operator is liable without regard to any negligence or fault. The mere finding of a violation by an MSHA inspector justifies a citation against the mine operator.
If a mine operator engages an independent contractor to perform services or construction at the mine, and the contractor commits a violation, MSHA can and often does cite the mine operator for the violation, without regard to whether the mine operator had any part in the cause of the violation. Technically, it is not even a requirement that MSHA also cite the contractor, although MSHA can and often does. The rule is that MSHA has absolute discretion to cite the mine operator, the independent contractor, or both.
No-Fault Liability Related to Supervisory Control
The D.C. Circuit pointed to the definition of “operator” under the Act:
“[O]perator” means  any owner, lessee, or other person who operates a coal or other mine or  any independent contractor performing services or construction at such mine. [Bracketed numbers added by the court.]
The court held that not only can an independent contractor be liable as an operator under the second part of the definition, but a contractor – or presumably anyone else – who supervises a distinct area or activity at the mine, can be liable as an actual operator of the mine. (This is sometimes referred to as the “production operator,” which is not a statutory term.) This liability under the supervisory part of the definition can be with or without fault. In the words of the court:
Where supervisory control of a distinct aspect of the mining activity is farmed out to a firm different from the principal production-operator, refusal to apply the [A]ct’s liability without fault provision would thwart the [A]ct’s purposes.
Facts of Ames Case
Ames Construction was engaged as an independent contractor to construct a tailings pond at the Kennecott Utah Copper Mine. Pipes weighing 3,000 pounds each were being delivered to the mine by truck. The truck drivers were responsible for loosening the straps that restrained the pipes on their trucks, but not before the load was checked for stability.
In this case, the driver was escorted to the unloading site by Ames employees who told him to “wait right here” until they returned with a fork lift to unload the pipes. In the interim, the driver proceeded to loosen the straps without verification of load stability. A pipe rolled off and fatally injured him. The court recognized that there was no question about the driver’s negligence.
The court agreed with the Commission that “as a supervisor of ‘a process, the unloading of pipes,’ Ames was liable without regard to fault occurring in that process.” The court expressly did not decide whether an independent contractor under the second part of the definition (i.e., “performing services or construction”) would be subject to liability without fault.
Note: this article was published in the April 2012 issue of the MSHA/OSHA Report.