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 continue to hand down decisions friendly 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 stemming from citations and fines against mining companies. But the commission plays a crucial role in making sure workers 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. In general, a commission more aligned with operators than safety hawks is going to make it harder 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 gets three members and the other party gets two. But right now, the agency only has three Senate-confirmed commissioners, with a 2-1 GOP majority. The two Republican members, William Althen and Marco Rajkovich, are longtime lawyers for mining companies.
The lone Democrat is Art Traynor, a union lawyer formerly with the United Mine Workers 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 might be fined for safety violations, or when a miner is protected under the law for their safety activism.
“It’s not right to have a Democratic president and Republicans constituting the majority of the commission. For all miners in the U.S., these are extremely important positions.”
– Tony Oppegard, mine safety lawyer
The White House has put up two more nominees who, if confirmed, would fill all 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 have not gotten a vote on the Senate floor.
Elections are supposed to determine the direction of federal policy, but lesser-known agencies 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 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 small pipe with too much being jammed through it,” he said. “It’s the agencies that don’t have the overall political pull that end up falling 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 was hoping the Democratic election victories in 2020 would change its complexion and lead to decisions that strengthen the law in miners’ favors. He noted that the commission shapes safety not just 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 majority of the commission,” said Oppegard, many of whose clients are safety whistleblowers. “For all miners in the U.S., 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 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 confirm Mary Lu Jordan and T.J. Baker — two highly qualified nominees committed to mine workers’ safety — and believes there is simply no reason for any further delay,” the aide said in an email.
But even if the commission winds up with a Democratic majority, it might not last long.
All three of the 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 set to expire first, a move that could end up 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.
That means even if Democrats approve the two nominees awaiting a Senate vote, they would need to promptly reconfirm Traynor or install a new nominee in his place in order to avoid a 2-2 commission that might deadlock on cases by the end of the summer.
With control of the commission essentially up for grabs, the agency has turned into a political football.
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” as the commission’s chair. Traynor told HuffPost the allegations are an untrue smear. But even if unfounded, they could hurt Traynor’s prospects for reappointment, forcing Democrats to get another nominee through the process to establish 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 own party, making a bipartisan compromise less likely with Republicans.
“Since 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 benefits being issued through a COVID-19 relief program, according to 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 so long as Republicans outnumber Democrats.
“In their short time in the majority, they have done a lot of damage to the legal protections that have been in place for miners for decades,” he said.
Althen said he took offense to that.
“This stuff about us undercutting miner safety is just not true,” he said. “I completely reject the notion that operator lawyers are bad people who don’t care about the workers. I’ve been at fatality sites.”
Rajkovich declined an interview request but said in an email that the idea that the Republican commissioners would undermine safety is “erroneous.”
“I have spent a lifetime in the mining field always placing safety first,” he said. “As a Commissioner, my role (and the role of all Commissioners) is to take an impartial 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. The majority 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 shutdowns. Traynor says that the majority’s position would make it much harder to enforce a requirement that operators have underground shelters for miners in emergency situations.
“In their short time in the majority, they have done a lot of damage to the legal protections that have been in place for miners for decades.”
– FMSHRC Chair Art Traynor
The commission has not yet issued its decision. In a public hearing last year, Traynor argued that his colleagues were going out of their way to alter a prior decision to the industry’s benefit. The hearing grew heated, with Traynor calling Rajkovich dishonest, and Traynor and Althen eventually shouting at one another. Althen accused Traynor of slow-walking the case so they couldn’t issue the decision, saying Traynor was “looking for 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 end up taking control of the Senate next year, they could block Biden from filling any open positions, preventing a Democratic majority.
Similar problems hang 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 it currently has just two Senate-confirmed commissioners, one Democrat and one Republican.
The White House withdrew the nomination of a potential third commissioner, Democrat Susan Harthill, without an explanation last month. As with the mine safety review commission, it isn’t clear when the agency will 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 will be unable to decide certain cases where the commissioners don’t agree. And under the law, she said, employers won’t have to address the alleged hazards in their OSHA citations so 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 remain in Republican hands,” she said. “Who suffers are mine workers and other workers in dangerous industries.”