Members of Congress have demanded documents related to an unprecedented settlement in which the Trump administration lifted a strong penalty for a repeat violator of coal mine safety laws.
In a letter to the head of the Mine Safety and Health Administration, two Democratic representatives, Bobby Scott of Virginia and Mark Takano of California, said the settlement appeared to violate federal law. The letter also demanded an explanation for the initial attempts to shield the agreement “from the public in a cloak of secrecy.”
As BuzzFeed News has reported, the agency recently struck a deal with Pocahontas Coal Company that removed its Affinity mine in West Virginia from the “pattern of violations” status. This designation is the most powerful enforcement tool regulators have to protect miners from companies that repeatedly flout safety rules.
Pocahontas Coal is part of the business empire of Ukrainian oligarch Rinat Akhmetov, who backed his country’s pro-Russia political party and hired former Trump campaign manager Paul Manafort.
The settlement came at the direction of Mine Safety and Health Administration chief David Zatezalo, a former coal executive whose company racked up repeated safety violations. Zatezalo also chaired an industry organization that is suing the agency he now runs in an attempt to invalidate the pattern of violations rule.
The Federal Mine Safety and Health Review Commission allowed the settlement, but one commissioner dissented, calling the agreement an “illegal act” that could dramatically undercut “the most powerful tool for protecting the lives of the nation’s miners.”
Regulators’ ability to place a mine of pattern of violations status dates back to 1977. Congress intended the tool as a potent deterrent: Once a mine gets tagged with this label, inspectors who find a serious violation can order a temporary shutdown of that area of the mine until the hazard is fixed. To have the pattern of violations designation lifted, a mine has to undergo a complete inspection without receiving any violations deemed “significant and substantial,” meaning they are reasonably likely to contribute to serious injuries.
There is no evidence that the Pocahontas Coal mine ever met that standard, so the settlement taking it off the pattern of violations status is an “unlawful agreement” based on “the administration’s corrupted reading of the law,” wrote the dissenting commissioner, Robert Cohen.
The letter from Scott and Takano, who serve on the House committee overseeing workplace safety, asks Zatezalo to explain why he believed he had the legal authority to enter the settlement.
The agency said in legal filings that it has the discretion to remove a pattern of violations notice as it deems appropriate. Zatezalo said in a statement to BuzzFeed News, “In litigating this matter, I believe this was the strongest enforcement action that would withstand judicial scrutiny.”
Representative for Pocahontas Coal’s parent companies did not respond to requests for comment. In a press release, an executive said removal of the pattern of violations status “is a result of hard work and dedication toward having the best safety and compliance in the industry.”
The Congress members also requested information about who decided to file the settlement and related documents under seal initially. Both the company and the agency later agreed to lift the seal when the commission demanded an explanation for the secrecy, which neither side provided. The attempt to seal the documents “begs a number of questions,” the representatives wrote. Among them, they wrote: “Was there an effort to evade public scrutiny of what may have been an unlawful arrangement with this operator?”
Scott and Takano asked Zatezalo to hand over written communications, documents, and meeting records related to discussions between Pocahontas Coal or its parent companies and Mine Safety and Health Administration officials. They also requested internal Labor Department communications about the decision to enter the settlement.
The scrutiny of the agreement comes as Zatezalo’s agency is also negotiating a settlement filed by industry groups seeking to roll back a 2013 regulation closing loopholes in the previous version of the pattern of violations rule. Those changes came in response to the worst coal mine disaster in 40 years and a scathing report from the Labor Department Office of Inspector General. The Obama administration defended the rule in court, but the agency has reversed course under the Trump administration. Mine safety advocates fear the government may bargain away the key enforcement tool.
Previously, the agency has credited the rule with helping to reduce violations and injuries, and Zatezalo, under questioning from members of Congress earlier this year, said the rule “has been effective” and “has been able to reduce repeat violators.”
Worried safety advocates, however, point to Zatezalo’s past. While he was chief executive of Rhino Resources, the company twice received warning letters from regulators stating that one mine with a poor safety record risked being placed on the pattern of violations status. Zatezalo also served as chair of the Ohio Coal Association and the Kentucky Coal Association. Both organizations are among the plaintiffs in the ongoing lawsuit.
Zatezalo told lawmakers earlier this year that the Labor Department’s ethics counsel told him that conflict of interest rules applied only to organizations where an appointee had worked during the previous two years. Zatezalo said he resigned as the chair of the Kentucky Coal Association on Nov. 14, 2014 — roughly three years before his nomination and one month before the trade group filed the pending legal challenge to the pattern of violations rule. (The association had also pursued much the same lawsuit in a different court while Zatezalo was chair.) Therefore, he told members of Congress, “I am not required to recuse myself” from participating in the settlement negotiations.
An agency spokesperson previously declined to answer questions from BuzzFeed News about Zatezalo’s role in the ongoing talks.