President Donald Trump’s nominee to chair the independent agency tasked with adjudicating mine safety cases is a lawyer who has defended coal companies with safety violations.
Marco Rajkovich was nominated in January to chair the Federal Mine Safety and Health Review Commission, an independent board responsible for deciding cases under the Mine Act of 1977.
Prior to his nomination, Rajkovich worked in Kentucky representing coal companies and argued cases before the commission he is nominated to serve on, according to his online biography.
A CNN review has shed new light on Rajkovich’s work on behalf of the mining industry, including his representation of a company accused violating code by trying to thwart federal inspections.
The government alleged officials at a Kentucky mine illegally told workers underground that Mine Safety and Health Administration inspectors were on site for a surprise visit, according to federal court filings from 2010. The now-bankrupt company, Manalapan Mining Company, settled with the government in 2013, agreeing to a fine and an employee training program.
Court records list Rajkovich and a fellow partner at his law firm as the attorneys for Manalapan.
The position Rajkovich would hold, if confirmed by the Senate, involves deciding cases rather than writing regulations. Seth Harris, former Obama administration acting labor secretary, questioned whether Rajkovich would be appropriate for the role because “we don’t think people who strongly disagree (with regulations) should be in charge of enforcing” them.
“In the case of safety and health laws,” Harris said, “whether you vigorously enforce them or not can be the difference between life and death.”
That also has at least one liberal watchdog group concerned that he could unfairly affect the cases he would preside over. Trump is “handing the keys over to industry,” said Corey Ciorciari of Democracy Forward.
The criticism of Rajkovich is compounded because he and David Zatezalo, Trump’s new Assistant Secretary of Labor for Mine Safety and Health, share ties to a different company, where inspectors documented more than 1,100 safety violations since 2008.
Rajkovich once represented CAM Mining in the investigation of a mine worker’s death, which the government concluded occurred “because safe procedures for conducting blasting operations were not followed,” according to a report produced by the agency Zatezalo now heads. Zatezalo was an executive at CAM Mining’s parent company, Rhino Resource Partners, where he eventually rose to president and CEO.
Zatezalo testified before a House subcommittee on Tuesday and said his past work for mining companies does not present a conflict of interest in a key policy area members questioned him on.
He said Tuesday he has not recused himself from decision-making on the case, and sees no reason why he should.
“I do not, sir,” he told one lawmaker. “If there is a conflict, I’m happy to work with ethics counsel.”
Rajkovich has not responded to CNN’s requests for comment. A spokeswoman for the Labor Department declined to answer questions about Rajkovich, saying those “should be directed to him.” Rajkovich’s nomination is currently awaiting consideration by the Senate labor committee.
The Trump administration has nominated and appointed other individuals who were skeptical of the regulations or agencies they now oversee.
For example, Environmental Protection Agency Administrator Scott Pruitt sued the EPA more than a dozen times while attorney general of Oklahoma, and Energy Secretary Rick Perry previously proposed eliminating the Department of Energy.
Trump campaigned on bringing back the coal mining industry, which has shrunk as cleaner fuels like natural gas became cheaper and more widely-used. “For those miners, get ready because you’re going to be working your asses off,” he said on the campaign trail in May 2016.
But critics say by putting the two men in these two key spots the President is letting down a prized constituency when it comes to safety.
“I think it’s incredibly troubling when you have the president make a promise to coal miners that he was going to support them and have their back,” Ciorciari said. “He has essentially appointed a former industry insider with bad record on coal mine safety issues to the top (position) overseeing coal mine safety in the government.”
A fate of a safety rule designed to crack down on “significant and substantial violations” offenders – the Obama-era Pattern of Violations Rule – is of particular concern to mine safety advocates.
Zatezalo’s company, Rhino Resources, twice received letters from the Mine Safety and Health Administration warning “that a potential pattern of violations exist” at its Eagle 1 mine in West Virginia.
The 2010 letter noted the mine received 75 citations or orders for “significant and substantial violations” of mine safety regulations in the past year. In the next year, it received 87 more violations, prompting a second warning.
Rhino hasn’t been issued warning letters since and says on its website that it is “highly focused on the safety of our coal operations and work diligently to meet or exceed all safety and environmental regulations required by state and federal laws.” The company notes it has had fewer violations than the national average.
Two lawsuits are currently challenging the Pattern of Violations rule.
One of them was filed by the Ohio Coal Association and Kentucky Coal Association; Zatezalo previously served as chairman of the Ohio group and a board member of the Kentucky group.
Zatezalo, who took office in November, said the settlement discussions are “still ongoing.”
“I have been briefed only one time for a few short minutes about the situation,” he said. “There have not been any settlement discussions to my knowledge since the time that I came with MSHA.”
The Labor Department defended Zatezalo’s decision not to recuse himself. He left both organizations more than two years ago, the time period for conflicts of interest “under ethics law and the Trump administration ethics pledge,” spokeswoman Amy Louviere told CNN.
“Accordingly, on the advice of department ethics counsel, he is not required to recuse himself from matters involving specific parties, e.g., investigations, litigation, inspections concerning the Ohio Coal Association and the Kentucky Coal Association,” Louviere said.
The Obama administration had been fighting the lawsuits, which ask federal courts to strike down the rule as illegal and unconstitutional. The rule requires mine companies to suspend operations at mines with significant safety issues and allows work to resume only when the issues are fixed.
But soon after the Trump administration took office, the government and industry groups filed a series of notices with the court that they are now in settlement talks seeking “a mutually agreeable negotiated resolution.”
Zatezalo refused to say Tuesday whether he believes the patterns of violation rule should be rolled back, but when pressed on the issue, said the rule has been “effective.”
“It has been able to reduce repeat violators,” he said.