Trump nominees still control a key mining security agency well into Biden’s second year

Sixteen months into the Biden presidency, Republicans still effectively control a federal agency that oversees mine safety, frustrating miner advocates who say Trump’s nominees will continue to dictate decisions favorable to mine operators. .

Not many people outside the industry would be familiar with the Federal Mine Safety and Health Review Commission, an independent agency that reviews legal disputes arising from citations and fines against mining companies. But the commission plays a crucial role in making sure workers get out of its mines alive, by interpreting health and safety laws and making sure federal inspectors are properly enforcing them.

When the Mine Safety and Health Administration issues fines against a mine operator, the operator can appeal them to the commission. In general, a commission more aligned with the operators than with the security hawks will make it difficult for inspectors to enforce the law aggressively.

The commission is supposed to have five sitting members who serve staggered terms and adjudicate cases as a panel. By tradition, the president’s party has three members and the other party has two. But right now, the agency only has three Senate-confirmed commissioners, with a 2-1 Republican majority. The two Republican members, William Althen and Marco Rajkovich, are longtime attorneys for mining companies.

The only Democrat is Art Traynor, a union lawyer who previously worked for the United Mine Workers of America. President Joe Biden appointed Traynor as chairman of the commission, but his two Republican counterparts can still beat Traynor in contentious, precedent-setting cases. Such decisions can determine when a mine operator might be fined for security violationsor when a miner is protected by law for them security activism.

“It is not correct to have a Democratic president and Republicans constituting the majority of the commission. For all miners in the US, these are extremely important positions.”

– Tony Oppegard, mining safety attorney

The White House has put forward two more nominees who, if confirmed, would fill every seat on the committee and create the 3-2 Democratic majority expected under a Democratic president. Those nominees have been approved in the Senate Committee on Health, Education, Labor and Pensions, but have yet to get a vote on the full Senate.

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

“It’s a classic little pipe with too much stuck through it,” he said. “It’s the agencies that don’t have the overall political clout that end up falling by the wayside.”

Tony Oppegard, a lawyer who represents miners in safety cases, said he had long thought the commission was too favorable to operators. He hoped that Democratic electoral victories in 2020 would change his face and lead to decisions that would strengthen the law in favor of the miners. He noted that the commission shapes safety not only in coal mines, but also in metal and non-metal mines across the country.

“It’s not right that a Democratic president and Republicans make up the majority of the commission,” said Oppegard, many of whose clients are security whistleblowers. “For all miners in the US, these are extremely important positions, because they interpret the law of the [Mine Safety and Health Act] and all the intricacies of that law.”

An aide to Sen. Patty Murray (D-Wash.), who chairs the HELP committee, said she was pushing for a floor vote for commissioner hopefuls.

“Senator Murray is pushing hard to confirm Mary Lu Jordan and TJ Baker, two highly qualified nominees committed to the safety of mine workers, and believes there is simply no reason for further delay,” the aide said in a statement. email.

But even if the commission ends up with a Democratic majority, it might not last long.

The three current commissioners were appointed by the previous administration and confirmed by the then GOP-controlled Senate as a group in 2019. But the Trump administration placed Traynor, the only Democrat, in the commission seat that will expire first, a move that could end up strengthening the GOP’s grip on the commission. Traynor’s seat opens this August, while Althen and Rajkovich retain their seats until August 2024.

That means even if Democrats approve the two nominees awaiting a Senate vote, they would have to re-confirm Traynor or install a new nominee in his place to avoid a 2-2 commission that could deadlock. in cases for late summer.

With control of the commission essentially at stake, the agency has become a political football.

The Federal Mine Safety Review Commission still has a Republican majority well into the Joe Biden presidency.

Spencer Platt via Getty Images

Like E&E News recently reportedRepublicans on the House Oversight and Reform Committee accused Traynor of “political interference” and “improper management practices” as committee chairman. Traynor told HuffPost that the accusations are false libel. But even if they are unfounded, they could hurt Traynor’s re-election prospects, forcing Democrats to get another candidate through the process to establish a majority on the committee.

Traynor said the Trump administration’s jockeying with committee seats has left Democrats with three straight seats to fill with their own party, making a bipartisan compromise with Republicans less likely.

“Since they are all Democrats, they have unleashed the slime,” he said.

Traynor recently sent a letter to the HELP committee alleging “serious misconduct and criminal misconduct” by commission employees under Althen and Rajkovich’s supervision, including fraudulent employment benefits issued through a COVID relief program. -19, according to E&E. Althen and Rajkovich have said the accusations are false.

Traynor said his biggest concern is how the security law is shaping up. He said the commission will tilt the law in favor of mine operators as long as Republicans outnumber Democrats.

“In their short time at most, they have done a lot of damage to legal protections that have been in place for miners for decades,” he said.

Althen said he was offended by that.

“This thing about us undermining miner safety is just not true,” he said. “I completely reject the notion that operator attorneys are bad people who don’t care about workers. I’ve been to fatality sites.”

Rajkovich declined an interview request, but said in an email that the idea that Republican commissioners would undermine security is “wrong.”

“I have spent my entire life in the mining field always putting safety first,” he said. “As commissioner, my role (and the role of all commissioners) is to take an unbiased view and decide cases fairly and based on the law.”

Perhaps the most contentious case before the commission involves a subsidiary of coal giant Peabody Energy. Most could set a precedent that makes it easier for mine operators to avoid “significant and substantial” safety violations, saving tens of thousands of dollars in potential fines and avoiding mine closures. Traynor says the majority position would make it much more difficult to enforce the requirement that operators have underground shelters for miners in emergency situations.

“In their short time at most, they have done a lot of damage to legal protections that have been in place for miners for decades.”

– FMSHRC President Art Traynor

The commission has not yet issued its decision. in a public audience Last year, Traynor argued that his colleagues were trying to change an earlier decision to benefit the industry. The audience turned heated, with Traynor calling Rajkovich dishonest, and Traynor and Althen eventually yelling at each other. Althen accused Traynor of taking the case slowly so they couldn’t issue a decision, saying Traynor was “looking for two more commissioners.”

Midterm elections this fall could further complicate efforts to reshuffle the commission, depending on how long seats remain vacant. If Republicans end up taking control of the Senate next year, they could prevent Biden from filling vacant seats, preventing a Democratic majority.

Similar problems loom over another worker safety agency, the Occupational Safety and Health Review Commission, which adjudicates citations issued by OSHA inspectors. That agency is a three-member body, but currently has only two Senate-confirmed commissioners, one Democrat and one Republican.

The White House withdrew the nomination of a potential third commissioner, Democrat Susan Harthill, without explanation last month. As with the mining safety review commission, it is unclear when the agency will have all of its seats filled and controlled by a Democratic majority.

Debbie Berkowitz, a workplace safety expert and former OSHA official, said a deadlocked commission won’t be able to decide certain cases on which commissioners disagree. And under the law, she said, employers won’t have to address alleged hazards in their OSHA citations as long as the appeals are there with the commission.

“It’s good for Republicans and their big business supporters that these agencies don’t work or stay in Republican hands,” he said. “Those who suffer are the miners and other workers in dangerous industries.”

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