These are troubling times at the obscure Federal Mine Safety and Health Review Commission (FMSHRC) and that means troubling and dangerous times for the miners of this country as well.
For those who have never heard of it, FMSHRC is an independent 5 member agency that serves as the high court of the Mine Safety and Health Agency (MSHA). Dave Jamieson at the Huffington Post explains why this small federal agency (76 employees and a $17 million budget) is important to the safety of this country’s miners.
[FMSHRC] 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 normally has 5 sitting commissioners that serve staggered 5-year terms — three from the President’s party and two from the opposition. So we might assume that more than 16 months into a Democratic Administration and Democratically controlled Congress, FMSHRC would by now be safely controlled by Democratic commissioners with a more pro-miner slant than the previous administration.
More than 16 months into the Biden Administration, Republicans still control the Federal Mine Safety and Health Review Commission. And things may get worse.
But in fact, Republicans still control the agency. As Jamieson explains,
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.
Both of the sitting Republican Commissioners represented coal companies in private legal practice prior to joining the commission. There are currently two Democratic nominees awaiting Senate confirmation: veteran FMSHRC member and former chair Mary Lu Jordan and Timothy “T.J” Baker, associate general counsel for the United Mine Workers of America. Confirmation of Jordan and Baker would bring the Commission under Democratic control.
And things may get even worse. The reasons are somewhat complicated.Normally, new commissioners are presented as a bipartisan package to the Senate. Empty Republican and Democratic seats are considered at the same time, giving both parties an incentive to move the nominations forward. But the Trump administration pulled a fast one. When Art Traynor, the current chair, was nominated, instead of giving him a full 5-year term, the Trump administration stuck him into the seat that was scheduled to expire first, this coming August. Both Republican commissioners, on the other hand, are in seats that don’t expire until August 2024. That leaves two open Democratic seats (Jordan and Baker) that still haven’t been confirmed, and the remaining Democratic seat (Traynor), which is about to expire.
So instead of the normal package confirmation deal consisting of both Democratic and Republican nominees, we have only Democratic nominees (the two current nominees, plus Traynor’s soon-to-be-open seat), at least until late 2024 — a recipe for stalemate — giving Republicans have every incentive to stall the nomination and muck up the process in any way they can. And, as I explain below, Republicans on the Commission and in the Senate are doing.
If Traynor’s seat expires before the two Democratic nominees awaiting a Senate vote are confirmed, Republicans will completely control the Commission.
If Traynor’s seat expires before the two Democratic nominees awaiting a Senate vote are confirmed, Republicans will completely control the Commission. Even if Jordan and Baker are confirmed, that means the Commission could deadlock on 2-2 votes if Traynor (or a new Democratic nominee) is not promptly confirmed. Senate Democrats have the majority and can confirm nominees even without Republican support, but it takes more valuable floor time which Majority Leader Schumer may need for “more important” issues.
And, of course, all bets are off for future confirmations if Republicans take the Senate following the November mid-terms.
Undermining FMSHRC’s Integrity
Traynor thought something smelled fishy. According to POLITICO, “Traynor, who expressed concern in his inspector general request this year that Rajkovich’s group ‘appears to have been comprised at least in part of top executives of coal and other mining concerns, some of whom were recent former clients of Rajkovich’s law firm.'”
He requested an Inspector General’s investigation accusing Rajkovic of creating an “off-the-books investigatory unit” to vet candidates for the agency’s chief administrative law judge and suggested that Rajkovich’s action “appears to be a violation of the Antideficiency Act,” which prohibits federal employees from accepting voluntary services for government work. (Unfortunately, FMSHRC, being a small agency, has no Inspector General at this time, so it’s unclear where this investigation goes.)
Traynor’s concerns were supported by Tom Stock, a retired long-time commission staffer who once served as the agency’s general counsel.
Speaking from his experience as a former ethics official, Stock said his opinion is that such reliance on the “Network” would have “violat[ed] ethics rules of impartiality, appearances and propriety in an amazing way.” “You know, it’s just astounding that he would have done that,” Stock said in an interview with POLITICO. “And to have done it in writing!”
Who Runs the Commission?
Traynor and the Republican commissioners are also engaged in a battle over the integrity of the Commission and who manages its day-to-day procedures: the Chair (Traynor) or the (Republican) majority of Commissioners.
Earlier this year, Traynor announced that he had lost faith in the Commission’s General Counsel, Michael McCord, and took away his authority assign attorneys to advise on cases sent to the commission for review. In addition to his involvement with the Network, Traynor alleged that McCord had worked with Rajkovich to assign attorneys to a case that Rajkovic had recused himself from because he and his former law firm had been involved in the case.
In addition, in late 2021, Traynor identified evidence of “potential federal crimes” including millions of dollars in improper contracting and procurement, abuse of a pandemic relief program costing the.
Commissioners Rajkovich and Althen objected to Traynor’s actions and voted to restore the traditional procedure where the General Counsel would assign attorneys. Although Traynor accepted that reversal, his actions were defended by Tony Oppegard, a mine safety attorney in Lexington, Ky., who has practiced before the commission for decades, although according to E&E News.
“That’s crazy,” Oppegard said. “The chairman is the guy who runs the commission. It’s always been that way.”
In addition, in February 2022, the Republican commissioners, Althen and Rajkovich, wrote to the Senate Health, Education, Labor and Pensions Committee accusing Traynor of breaking established procedures by taking the responsibility to assign cases to staff attorneys away from McCord. Senators Richard Burr (R-NC), the top Republican on the committee, and Mike Braun (R-IN) then called on President Biden to fire Traynor.(In a somewhat amusing indication of how far the Republicans will go, Althen and Rajkovic wrote the Senators on newly created stationery that purports to have come from an “Office of Commissioners,” which doesn’t exist.)
Commissioner William Althen accused Traynor of intimidating and micromanaging staffers in the commission’s Office of General Counsel, decrying the chair as “an asshole.”
In March, Traynor put McCord and Executive Director Lisa Boyd on administrative investigative leave due to the allegations of potential federal crimes and their relationship with The Network. Commissioner Althen was not pleased. According to POLITICO, “Althen accused Traynor of intimidating and micromanaging staffers in the commission’s Office of General Counsel, decrying the chair as ‘an asshole, excuse my language. But he has alienated everybody on the legal team.’”
Undermining Miners’ Protections
All of this might be seen as some kind of confusing inside-the-beltway, “Real Bureaucrats of Washington” melodrama if it didn’t threaten the safety and rights of American miners. But unfortunately for the miners going down into the pits every day, the turmoil at the FMSHRC and the decisions the Republican majority continues to make 16 months into the Biden administration has real life-or-death implications. There are three cases currently or recently before the Commission that illustrate these points.
Reinstated and it Feels so Good….
The most upsetting case addresses temporary reinstatement of a miner who alleges that he/she has been discriminated against for engaging in protected safety activity. If a miner is fired for engaging in a protected safety activity, Section 105(c)(2) of the Mine Safety and Health Act allows the miner to be “temporarily reinstated” as long as the anti-discrimination case was not “frivolous.” All the miner has to prove is that he/she had a reasonable claim to be reinstated. That means that during the months or years while the merits of the underlying case are determined through the legal process, the miner is still allowed to work and get paid.
Contrast this with the Occupational Safety and Health Act which contains no provision for temporary reinstatement. Workers who are unjustly fired for engaging in protected health and safety activities must often wait years — without pay — until their case is resolved.
In Cook v. Rockwell Mining LLC, however, the Republican majority had changed the law to require a full evidentiary hearing with a higher burden of proof to ensure that the miner’s claim was not frivolous. This lengthy process essentially defeats the purpose of temporary reinstatement which is intended to get miners back to work as early as possible.
Reckless and Flagrant
In another case, Northshore Mining, the Republican majority is undermining a provision of the MINER Act, passed after the Sago mining disaster, that provided for higher penalties in the case of “reckless flagrant violations.” Whereas the original definition of “flagrant” was where a reasonable person would recognize the risk of serious harm by not fixing a problem, Republicans would require “conscious or deliberate expectation” or operator intent to cause harm in order to justify a reckless reckless flagrant violation — an almost impossible standard to meet. That definition would be more appropriate to proving homicide, not an MSHA violation.
What we need right now is for the Senate to quickly confirm Mary Lu Jordan and T.J. Baker, and re-nominate — and confirm — Art Traynor as Chair. Lives depend on it.
Making Shit Up
Finally, in the Consol case, MSHA and an Administrative Law Judge had decided a case based on a number of facts. The Republican majority substituted their own facts and overturned the ALJ’s decision. Again, an action unprecedented in FMSHRC history.
So, to sum up, 16 months into the Biden administration, we still have a Republican majority on FMSHRC, a Republican majority that threatens to obstinately continue through the entire Biden administration due to unprecedented manipulation of the appointment process by the Trump administration. And that Republican majority — not unlike the Supreme Court — is overthrowing decades of precedent, thereby threatening the safety, health and lives of the miners of this country. And finally, as we saw so often during the Trump administration, we see a Republican majority that seems to believe that ethics — and the law– don’t apply to them.
What we need right now is for the Senate to quickly confirm Mary Lu Jordan and T.J. Baker, and re-nominate — and confirm — Art Traynor. Lives depend on it.
Cover photo by Earl Dotter