The commission responsible for resolving disputes between miners and the federal mine safety agency has lacked a quorum since Aug. 30, leaving it unable to issue decisions on cases.
The Federal Mine Safety and Health Review Commission had been operating with just four of five members since Commissioner Patrick Nakamura's term expired in August 2016, and that number was cut in half when two other commissioners' terms ended in the summer.
President Donald Trump appointed Marco Rajkovich, an attorney who has defended the mining industry, to chair the commission earlier this year, but the U.S. Senate has yet to confirm him.
The commission's general counsel, Michael McCord, said in an interview that the two-member commission can grant petitions, the first step in appealing a case, from administrative law judge decisions but requires three members to decide a case.
"So cases may sort of stack up," McCord said. "We're hoping that won't be the case, but there's just no way of knowing when we will have that third commissioner."
The commission worked to get as many decisions out ahead of Aug. 30 as it could to lessen a backlog of cases once there was no longer a quorum, McCord said.
The attorney said he is surprised that Senate leadership has not brought Rajkovich's name to the floor, especially since the nominee is from Senate Majority Leader Mitch McConnell's home state of Kentucky.
"One would think that that would be helpful, that that would push the nomination along," McCord said. "But that hasn't happened. There's no explanation as to why. And of course, there are many other nominees for other agencies that are awaiting confirmation."
Phil Smith, spokesman for the United Mine Workers of America, said the purpose of the commission is to ensure that if serious violations occur, companies pay the appropriate penalties and keep their miners safe.
"It's a bad situation when the legal system that oversees mine safety in this country can't operate," Smith said. "... The reason that system is there is to ensure that the laws are being followed. If the agency can't act, then it's not clear that the laws are being followed."
Jeffrey Ladik, an attorney who has represented mining operators before the commission, said mine operators facing large monetary penalties would want the issue resolved quickly, as would miners facing unsafe working conditions.
"Bottom line, it's just a whole lot of uncertainty," Ladik said.
Should a major case reach the commission, the two commissioners could grant review and let the case sit in the queue or deny review and the parties could be heard by a U.S. court of appeals, something Ladik referred to as "kicking the can to someone else."
"The U.S. courts are just not equipped to handle these really esoteric issues," Ladik said. "In other words, your average federal judge knows 'the law,' but they don't understand engineering, nor are they asked to understand that."
Murray Energy Corp., which has had several cases come before the commission and supports Rajkovich's nomination, said in a statement that it is concerned that the lack of a quorum "will lead to a backlog of cases with decisions delayed for far too long, leaving operators in limbo regarding important legal issues."