Federal Mine Safety & Health Review Commission addresses contractor liability issues
The Commission held that the ALJ’s mistake about the relationship between Ames and Orton did not control the outcome of the appeal, because her findings about Ames’ supervision of the unloading process still stood unchallenged. It found that Ames was an “operator” of the mine, under the definition in Section 3(d) of the Act, and that this extended to a construction company preparing a tailings dam.
Since a violation of a mandatory standard occurred at a mine at which Ames was an “operator,” it could be found strictly liable under Section 110(a). Strict liability means “liability without fault” but it does not mean liability for things outside one’s control or supervision. The absence of a contract between Ames and Orton was irrelevant if Ames was supervising the process of unloading pipes. It was Ames’ responsibility under its contract with Kennecott to oversee unloading of pipes.
Ames conceded at trial that Orton’s drivers were to follow the instructions of the Ames’ supervisor of the unloading process. There was also a safety and health “action plan” which was a site-specific project document detailing the safety requirements imposed on Ames by Kennecott. This included giving Ames’ supervisors and foremen the power to stop work that would place employees, equipment, or property in immediate danger, and to ensure that all unsafe conditions are corrected. This was found by the FMSHRC to imply supervisory authority rested with Ames. They also considered Ames’ Job Safety Analysis for unloading activities as showing that they were familiar with the hazards and responsible for unloading the pipes. Here, no attempt was made to prevent Kay from loosening the straps or otherwise to protect him from encountering hazards.
In short, Ames was an operator of the mine under the language of the Mine Act and was strictly liable for activities of third parties working within the area it controlled for any actions or conditions that violated MSHA’s standards. This decision should be a warning to contractors who assume control or all or part of a mine site for a limited period, as they will be responsible for ensuring compliance with MSHA regulations by all others who might perform any activities within that area.
About the author: Adele L. Abrams is an attorney, Certified Mine Safety Professional, and trained mediator who is president of the Law Office of Adele L. Abrams P.C. in Beltsville, Md., a seven-attorney firm focusing on safety, health, and employment law nationwide. Abrams also provides consultation, safety audits, and training services to MSHA- and OSHA-regulated companies
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