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Trump Nominees Still Control A Key Mine Safety Agency Well Into Biden’s Second Yr

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Sixteen months into the Biden presidency, Republicans still effectively control a federal agency that oversees mine safety, frustrating miner advocates who say the Trump nominees will proceed at hand down decisions friendly to mine operators.

Not many individuals outside the industry can be acquainted with the Federal Mine Safety and Health Review Commission, an independent agency that reviews legal disputes stemming from citations and fines against mining firms. However the commission plays an important role in ensuring staff come out of their mines alive, by interpreting health and safety law and seeing that it’s properly enforced by federal inspectors.

When the Mine Safety and Health Administration issues fines against a mine operator, the operator can appeal them to the commission. Usually, a commission more aligned with operators than safety hawks goes to make it harder for inspectors to implement the law aggressively.

The commission is purported to have five sitting members who serve staggered terms and adjudicate cases as a panel. By tradition, the president’s party gets three members and the opposite party gets two. But without delay, the agency only has three Senate-confirmed commissioners, with a 2-1 GOP majority. The 2 Republican members, William Althen and Marco Rajkovich, are longtime lawyers for mining firms.

The lone Democrat is Art Traynor, a union lawyer formerly with the United Mine Staff of America. President Joe Biden designated Traynor the commission’s chair, but Traynor can still be outvoted by his two GOP counterparts on contentious cases that set precedent. Such decisions can determine when a mine operator could be fined for safety violations, or when a miner is protected under the law for his or her safety activism.

“It’s not right to have a Democratic president and Republicans constituting the vast majority of the commission. For all miners within the U.S., these are extremely necessary positions.”

– Tony Oppegard, mine safety lawyer

The White House has put up two more nominees who, if confirmed, would fill all of the commission’s seats and create the 3-2 Democratic majority expected under a Democratic president. Those nominees have cleared the Senate Committee on Health, Education, Labor and Pensions but still haven’t gotten a vote on the Senate floor.

Elections are purported to determine the direction of federal policy, but lesser-known agencies just like the mine commission often wind up rudderless for long stretches, said Max Stier, president of the Partnership for Public Service, a nonprofit that tracks presidential nominees. Stier said the Biden White House, like most up-to-date administrations, has been slow to fill many roles (though not as slow as former President Donald Trump). He said much of the issue lies with the Senate.

“It’s a classic small pipe with an excessive amount of being jammed through it,” he said. “It’s the agencies that don’t have the general political pull that find yourself dropping by the wayside.”

Tony Oppegard, a lawyer who represents miners in safety cases, said he has long viewed the commission as too favorable to operators. He hoped the Democratic election victories in 2020 would change its complexion and result in decisions that strengthen the law in miners’ favors. He noted that the commission shapes safety not only in coal mines but in metal and nonmetal mines across the country as well.

“It’s not right to have a Democratic president and Republicans constituting the vast majority of the commission,” said Oppegard, a lot of whose clients are safety whistleblowers. “For all miners within the U.S., these are extremely necessary positions, because they interpret the law of the [Mine Safety and Health Act] and all of the intricacies of that law.”

An aide for Sen. Patty Murray (D-Wash.), who chairs the HELP committee, said she was pressing for a floor vote for the would-be commissioners.

“Senator Murray is pushing hard to verify Mary Lu Jordan and T.J. Baker — two highly qualified nominees committed to mine staff’ safety — and believes there’s simply no reason for any further delay,” the aide said in an email.

But even when the commission winds up with a Democratic majority, it may not last long.

All three of the present commissioners were appointed by the previous administration and confirmed by the then-GOP-controlled Senate as a bunch in 2019. However the Trump administration placed Traynor, the one Democrat, within the commission seat set to run out first, a move that might find yourself strengthening the GOP’s hold on the commission. Traynor’s seat comes open this August, while Althen and Rajkovich hold their seats until August 2024.

Which means even when Democrats approve the 2 nominees awaiting a Senate vote, they would wish to promptly reconfirm Traynor or install a latest nominee in his place as a way to avoid a 2-2 commission which may deadlock on cases by the top of the summer.

With control of the commission essentially up for grabs, the agency has became a political football.

The Federal Mine Safety Review Commission still has a GOP majority well into Joe Biden’s presidency.

Spencer Platt via Getty Images

As E&E News recently reported, Republicans with the House Committee on Oversight and Reform have accused Traynor of “political interference” and “inappropriate management practices” because the commission’s chair. Traynor told HuffPost the allegations are an unfaithful smear. But even when unfounded, they might hurt Traynor’s prospects for reappointment, forcing Democrats to get one other nominee through the method to determine a majority on the commission.

Traynor said the Trump administration’s maneuvering with commission seats has left Democrats with three consecutive seats to fill from their very own party, making a bipartisan compromise less likely with Republicans.

“Because it’s all Democrats, they’ve unleashed the slime,” he said.

Traynor recently sent a letter to the HELP committee alleging “seriously unethical and criminal misconduct” by commission employees under the watch of Althen and Rajkovich, including fraudulent work advantages being issued through a COVID-19 relief program, in accordance with E&E. Althen and Rajkovich have called the allegations false.

Traynor said his biggest concern is how safety law is being shaped. He said the commission will tilt the law in mine operators’ favor as long as Republicans outnumber Democrats.

“Of their short time in the bulk, they’ve done plenty of damage to the legal protections which have been in place for miners for a long time,” he said.

Althen said he took offense to that.

“These items about us undercutting miner safety is just not true,” he said. “I completely reject the notion that operator lawyers are bad individuals who don’t care concerning the staff. I’ve been at fatality sites.”

Rajkovich declined an interview request but said in an email that the concept the Republican commissioners would undermine safety is “erroneous.”

“I even have spent a lifetime within the mining field all the time placing safety first,” he said. “As a Commissioner, my role (and the role of all Commissioners) is to take an impartial view and judge cases fairly, and based on the law.”

Perhaps probably the most contentious case before the commission involves a subsidiary of coal giant Peabody Energy. The bulk could set a precedent that makes it easier for mine operators to avoid “significant and substantial” safety violations, saving tens of 1000’s of dollars in potential fines and avoiding mine shutdowns. Traynor says that almost all’s position would make it much harder to implement a requirement that operators have underground shelters for miners in emergency situations.

“Of their short time in the bulk, they’ve done plenty of damage to the legal protections which have been in place for miners for a long time.”

– FMSHRC Chair Art Traynor

The commission has not yet issued its decision. In a public hearing last yr, Traynor argued that his colleagues were going out of their method to alter a previous decision to the industry’s profit. The hearing grew heated, with Traynor calling Rajkovich dishonest, and Traynor and Althen eventually shouting at each other. Althen accused Traynor of slow-walking the case so that they couldn’t issue the choice, saying Traynor was “in search of two more commissioners.”

The midterm elections this fall could further complicate efforts to reshape the commission, depending on how long seats go vacant. If Republicans find yourself taking control of the Senate next yr, they might block Biden from filling any open positions, stopping a Democratic majority.

Similar problems hang over one other employee safety agency, the Occupational Safety and Health Review Commission, which adjudicates citations issued by OSHA inspectors. That agency is a three-member body, but it surely currently has just two Senate-confirmed commissioners, one Democrat and one Republican.

The White House withdrew the nomination of a possible third commissioner, Democrat Susan Harthill, without a proof last month. As with the mine safety review commission, it isn’t clear when the agency may have all its seats filled and controlled by a Democratic majority.

Debbie Berkowitz, a workplace safety expert and former OSHA official, said a deadlocked commission might be unable to determine certain cases where the commissioners don’t agree. And under the law, she said, employers won’t have to deal with the alleged hazards of their OSHA citations as long as the appeals are sitting there with the commission.

“It’s good for Republicans and their big business supporters that these agencies either don’t function or they continue to be in Republican hands,” she said. “Who suffers are mine staff and other staff in dangerous industries.”

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