It now seems settled that mine operators may be found liable for Mining Safety and Health Administration (MSHA) violations committed by their independent contractors. Within the past several years, at least two US Court of Appeals opinions have confirmed the right of the Secretary of Labor, in his or her discretion, to pursue violations against either a mine operator or its contractor, or both, when the contractor fails to comply with MSHA requirements. Even though the Secretary of Labor has such a right, mine operators can take steps that may reduce their liability exposure.

First and foremost, operators should strive to engage quality contractors that have solid reputations and are experienced in the tasks they will undertake at the mine. Although that seems obvious, it is not a goal that is easy to achieve. In some instances, there may not be a wide selection of experienced contractors, or the best ones may be comparatively expensive. Regardless of the circumstances however, avoiding problems with contractors almost always begins with making a good decision regarding the selection of the contractor.

Second, the operator should enter into a well written agreement with every contractor clearly setting out the terms of the arrangement and requiring that the contractor comply with all applicable governmental requirements, including MSHA requirements. The agreement should specifically provide that no employee of the contractor will be permitted at the mine unless he or she is competent and has received all MSHA required training, and that no equipment of the contractor will be used at the mine unless it is properly checked before each shift and found to be in a safe and lawful condition.

Third, the mine operator should consider policing provisions that may be included in the agreement. Having the right to regularly inspect the operations of the contractor and require that any MSHA deficiencies be corrected, may give the mine operator the opportunity to correct a problem and will no doubt be looked on favorably by MSHA. But such a right comes at a price. It also may give rise to negligence liability on the part of the mine operator if a dangerous problem relating to the contractor exists that is not discovered or corrected, and a third party is injured as a result.

In addressing the issue of whether it should retain a right of inspection, the operator should assess the risks presented by the contractor. If there are substantial risks to persons or property, the best approach may be to retain a right to inspect the operations of the contractor and require that MSHA deficiencies be corrected. It should be added, however, that the decision of the operator will ultimately depend on a number of factors. In any case, before entering into an agreement with a contractor, a mine operator should carefully consider how the contractor should best fit into the mine's overall safety program.

Last, the mine operator should have in place professionals who are familiar with MSHA policies and procedures, who can attend interviews, discuss matters meaningfully with MHSA staff, prevent misinterpretations and mistakes, and assist the mine operator in putting its best foot forward. There is no guarantee that MSHA will not cite an operator for the violations of its contractors, but being in a position to point out that the operator has implemented preventative measures in good faith and worked at preventing MSHA violations will often make a significant difference.