FMSHRC Commissioners Confirmed: Appeals of MSHA Enforcement to Continue

By: Nicholas W. Scala

As of March 25, 2019, the Federal Mine Safety and Health Review Commission (FMSHRC), the body which oversees operator and MSHA litigation under the Federal Mine Safety and Health Act of 1977 (the Mine Act), has regained the ability to hear and decide cases for first time since August 2018. The swearing-in of Commissioner William I. Althen, Commissioner Arthur R. Traynor III, and Chairman Marco M. Rajkovich, Jr. reinstated quorum for the FMSHRC.

FMSHRC Confirmations SnipOn August 30, 2018, with the expiration of terms for then Commissioners Cohen and Althen, the FMSHRC no longer had the requisite minimum of three members to form a quorum, or the minimum number of Commissioners required to fully function. During that time, Commission authority was limited to deciding which cases it would hear on appeal, however, all appeals of Administrative Law Judge (ALJ) decisions under the Mine Act were stayed, awaiting confirmation of the presidential nominees from the Senate. These nominees were confirmed by the Senate on March 14—more than a year after Chairman Rajkovich’s nomination in January 2018.
In its role as the appellate body of ALJ decisions, the Commission fills an important role in the evolution of MSHA regulations and interpretations. Commission decisions are binding on the FMSHRC ALJs, as well as MSHA and operators, unless a decision is appealed to the federal court system and the Commission reversed.

The restoration of quorum comes with a growing docket of appeals before the Commissioners, with topics ranging from discrimination and protected activity for miners under the Mine Act, the scope of ALJ power in requiring evidence be produced to approve settlements, and when fall protection is or is not required to be worn.

The Commission will remain complete with its five members until the terms of Commissioners Jordan and Young expire in 2020. Yet, even if the nomination and confirmation process is as sluggish as it was this time around, the Commission will retain quorum with the three recently confirmed members until Commissioner Traynor’s term expires in 2022. The terms for Chairman Rajkovich and Commissioner Althen expire in 2024. With a full Commission, industry can hopefully expect guidance on many of the languishing legal issues litigated in the recent years with MSHA.

 

 

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