WASHINGTON (Oct. 10, 2017)—The coal company David Zatezalo used to run has been cited repeatedly over the years for safety violations, leading miners' rights advocates and some senators to oppose him as President Donald Trump's choice to lead the federal mine safety agency.
"I plan to vote against Mr. Zatezalo," said Sen. Chris Van Hollen, D-Maryland. "It's troubling that the Trump administration felt he would be a good fit to head the very agency meant to protect miners, given his poor safety record and his pattern of violations at Rhino Resources."
"What's more, I am deeply concerned that this administration will be lax in enforcing measures that have improved mine safety in Maryland and across the country over the last decade," the senator added.
Van Hollen's sentiment was echoed by other Democratic senators.
"I fear (your selection) is another example of a nominee of a fox to guard the henhouse," Sen. Patty Murray, D-Washington, told Zatezalo at his confirmation hearing on Wednesday before the Senate Health, Education, Labor and Pensions Committee.
Zatezalo, who would succeed Joseph Main, President Barack Obama's chief of the federal Mine Safety and Health Administration (Wayne Palmer is acting administrator), maintained a conciliatory tone at the hearing.
"The mining industry in the United States today is safer and healthier that at any time in our history," Zatezalo said. "However, further progress needs to be made."
The lone Republican to question Zatezalo was Sen. Todd Young, R-Indiana, who expressed concern about the state of the small mines division at MSHA and the pace of adopting new technology to improve mine safety.
"Compliance, compliance assistance and reduction of accidents is what MSHA is all about," Zatezalo responded.
The committee is expected to vote on Zetazalo's nomination later this month.
The MSHA nominee did not contribute to Trump's presidential campaign and since 2006 has given relatively small amounts mostly to Republican congressional candidates, according to an analysis of campaign finance records by the Center for Responsive Politics.
There have been 13 miner fatalities so far in 2017, according to MSHA, nearly double the number from 2016 but similar to fatalities totals in recent years before 2016.
"I do not believe the fatalities to date (in 2017) are due to lack of enforcement," Zatezalo told senators, "but I don't have the details on them."
Information on 12 of the 13 fatalities are available on the website of the agency Zatezalo would lead.
Maryland, which has not lost a miner in a work accident since 2007, has 59 active coal mines that produced more than two million tons of coal in 2016, according to the Maryland Department of Energy. About 37 percent of Maryland's energy comes from coal.
Sen. Joe Manchin, D-West Virginia, one of the staunchest defenders of the coal industry in Congress, also came out against Zatezalo.
"Strong leadership at the Mine Safety and Health Administration (MSHA) is non-negotiable," Manchin said last week. "After reviewing his qualifications and record of safety during his time in the coal industry, I am not convinced that Mr. Zatezalo is suited to oversee the federal agency that implements and enforces mine safety laws and standards."
Before Zatezalo's hearing, Democratic Sens. Sheldon Whitehouse of Rhode Island and Robert Casey of Pennsylvania formally asked the Labor Department to produce communications regarding any investigations or enforcement measures—including those related to four miner fatalities—at mines owned by companies where Zatezalo held senior or top positions between 2001 and 2014.
"As it stands now, Mr. Zatezalo's record is questionable at best," Casey said. "We have to hold him to the highest degree of scrutiny so that we can protect the health and safety of our miners."
MSHA's primary charge is "to prevent death, illness and injury from mining and promote safe and healthful workplaces for U.S. miners" and enforce the Mine Act. Maryland relies on MSHA for safety compliance inspections at its mines.
Zatezalo's former company, Rhino Resource Partners, operates mines in Utah, West Virginia, Ohio and Kentucky. The company is not considered a large operator in the coal industry.
Rhino ran afoul of MSHA in 2010 and 2011, when the company received two "pattern of violation" warning letters related to mines in West Virginia and Kentucky.
Less than a year after one of Rhino's mines, Eastern Eagle No. 1 near Bolt, West Virginia, was cited by MSHA for safety violations, part of a wall collapsed, killing a miner. Rhino was fined $44,500 for the 2011 accident.
Rhino and MSHA later ended up in court over an inspection at one of the company's mines in Kentucky, where workers were suspected of smoking underground, risking ignition of coal dust and unearthed gases. MSHA claimed that underground miners at the site were alerted to the presence of inspectors before they entered the mine and filed an injunction to stop the practice.
Critics said it might not matter if Zatezalo or someone else runs MSHA in the Trump administration.
"Typically when Republicans are in office, the focus of the (MSHA) agency changes," said Tony Oppegard, a former general counsel to the Kentucky Department of Mines and Minerals and a former MSHA official.
Now a lawyer in Lexington, Kentucky, who has been involved in mine safety litigation, Oppegard characterized the approach of MSHA under past Republican administrations as one geared to industry-friendly "compliance assistance" rather than "safety enforcement," meaning fewer citations for dangerous practices and less emphasis on miner safety issues.
This was the practice during the George W. Bush administration, Oppegard charged, when "the (miner) death rate went up. There was a lot more disasters."
It was during this period when two Maryland miners in 2007 lost their lives in an accident at the Tri-Star Mining site in Barton after a highwall failed, burying them under 44,000 tons of rock and material.
"The fatalities occurred because the ground control plan did not adequately address highwall conditions, and obvious hazards were allowed to exist," said the MSHA report on the incident.
The National Mining Association, an industry trade group, is "really encouraged by (Zatezalo's) vast experience in both the U.S. and Australia," spokesman Luke Popovich told Bloomberg BNA last month, adding that "we look forward to working with him."
Zatezalo has yet to win support from the United Mine Workers of America.
Union President Cecil Roberts, who met with Zatezalo in September, said: "We're trying to be fair here. I don't want to say, 'well, he came out of industry and was a supervisor and we are going to be opposed to him.'"
But Roberts did not say UMWU would be backing Zatezalo's nomination. "We're still having that conversation and we're not ready to take a position on that," he added.
Despite the president's repeated campaign trail promises to revive the coal industry and his landslide win in West Virginia, Zatezalo has not garnered a single endorsement from labor groups.
"The mine workers know they're not going to get a mine safety advocate to head MSHA under Trump," Oppegard said. "Everyone knows that."