by Avi Meyerstein
Husch Blackwell LLP is an IMA B2B Partner
Baked into the core of federal safety laws is the concept that employers facing unfair citations can get a day in court. That system depends on two independent commissions of judges – both trial judges and appellate – to hear and review cases involving OSHA and MSHA citations. Keeping those panels stocked with commissioners has been an ongoing challenge.
For the better part of a year, the Federal Mine Safety and Health Review Commission (FMSHRC) has lacked a quorum. With only two of five seats filled, it did not have enough commissioners to decide cases. On the other hand, the Occupational Safety and Health Review Commission (OSHRC) had a full panel of three commissioners. Now, they’re going to flip.
After finally clearing a Senate vote a week earlier, on March 25th, three new commissioners joined FMSHRC to hear MSHA cases. Marco Rajkovich, Jr. became the new Commission chairman, while William Althen and Arthur Traynor became commissioners. Their terms expire in 2022 and 2024. The newly-filled Commission is good news for MSHA, for mine operators, and for miners. Quorum restored.
In the very same month, however, OSHRC Chairwoman Heather MacDougall announced that she would resign to return to the private sector after five years on the panel. That review commission, which hears contests of OSHA citations, is a three-member body and requires a quorum of at least two commissioners to decide cases. When fellow Commissioner Cynthia Attwood’s term expires this month, the panel will have just one commissioner left, James Sullivan. Quroum lost.
Given that it took the better part of a year for Senate confirmation of the mine safety commissioners, and OSHA still awaits a Senate vote on its nominee for assistant secretary, it is unclear how quickly new commissioners will be nominated or approved. Unfortunately, Commissioner Sullivan could be lonely for quite some time. OSHA cases that will have to wait involve issues as varied as protecting sea lion trainers from drowning and requiring bulletproof vests for security guards.
OSHA appeals may wait, but your contest can’t
Of course, the fact that a contest to an OSHA citation may be stuck waiting for an appeal to be heard does not extend the deadlines for an employer to file a contest to a new citation in the first place.
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