Commission Won’t Open POV Meeting

In a letter to Mine Safety and Health News, and other organizations, the Federal Mine Safety and Health Review Commission said it will not open to the public the Pattern of Violations meeting scheduled for Tuesday, Feb. 10.

Mine Safety and Health News was joined by Rock Products Magazine, Open the Government, Reporters Committee for Freedom of the Press and the Society of Professional Journalists, in making a formal request under FMSHRC Rule 29 CFR 2700.4 to open the Commission meeting involving the case: Brody Mining, LLC v. Secretary of Labor, Docket Nos. WEVA 2014-82-R.

Since 1978,when the Federal Mine Safety and Health Review Commission was first established, the Commission held open meetings regarding cases of formal adjudication. Under Commission rules, anyone can legally go to a Commission meeting, and listen to the Commissioners discuss the cases before them. Under FMSHRC rules, 29 CFR 2700.2 Commission “meetings will generally be open to public observation, including meetings concerning the disposition by the Commission of a formal adjudication.” Recordings of these meetings are also available, and relied upon by many who cannot make it to a meeting.

This is unlike the Occupational Safety and Health Review Commission, which states under 29 CFR 2203.3: “Because the Commission was created for the purpose of adjudicating litigated cases, it can be expected that most of its meetings will be closed to the public.”

This formal policy of openness of the FMSHRC is based on the legislative history of the Mine Act, and was established through the FMSHRC’s rules by the first Chairman, and former Congressman, Jerome Waldie. Coming in as the first chairman, on the heels of mine disasters, and in complete understanding of the legislative history of the Mine Act when it was fresh in everyone’s mind, Waldie wanted everything open.

At one point, many years ago, it was decided that meetings would be closed if they occurred right after oral arguments presented before the Commission. This policy became a point of contention with Mine Safety and Health News, and Chairman Jordan, and former Commissioner Mark L. Marks, who refused to attend open meetings. There is no logic or legal standing to closing a meeting because attorneys, who had just presented oral arguments, may listen to the Commission’s debate after their presentations.

While our organizations can understand the closing of a meeting that may involve disciplinary proceedings of an attorney, we cannot understand the closing of a meeting of one of the most important cases of Mine Act history. We are challenging the closing of this meeting because this issue of POV is so important in its legal, practical and public-awareness aspects. The Solicitor’s Office, MSHA, the industry, the unions, and the families of dead and injured miners want to know what’s going on, and have a clear understanding of the POV issue, and what is right or wrong with MSHA’s rule.

According to a letter from FMSHRC Executive Director Lisa Boyd, it is in the public interest to close the meeting, and the closure is in compliance with all applicable legal requirements under 29 CFR 2701.7.

Mine Safety and Health News argues that the Commission Rules calling for open meetings dealing with formal adjudications were subject to notice and comment, and finalized after comments were submitted by mining companies, attorneys, mining organizations, unions, and citizens, who all wanted openness in this Commission. This openness at the independent FMSHRC ensures the public trust of a system that can appear very broken.

Mine Safety and Health News, Rock Products Magazine, the Society of Professional Journalists, the Reporters’ Committee for Freedom of the Press and OpenTheGovernment.Org recognizes that public debate of the Commissioners can be uncomfortable. However, it is what is needed to assure accountability and understanding of the POV rule and process in this high profile case.

Open the meeting. Don’t hide behind closed doors.