Donald Trump wearing a hard hat during a rally in Charleston, West Virginia on May 5, 2016. Photo by Mark Lyons/Getty Images.

By Steve Horn

The legal team working to end new safety measures for repeat violators of mining-safety rules has a history of pushing to squelch a long-term study on mining-cancer rates, as well as lobbying against safety regulations, according to legal and regulatory documents reviewed by TYT.

The law firm Husch Blackwell is leading efforts to overturn a Mine Safety and Health Administration regulation that streamlines enforcement measures against repeat offenders. Husch Blackwell is advocating against the rule, known as Pattern of Violations (POV), on behalf of clients both in the lobbying arena and the regulatory commenting process.

Husch Blackwell is the public face of an industry group known as The Mining Coalition, but also represents the National Mining Association, Kentucky Coal Association, and Ohio Coal Association in a lawsuit challenging enhanced POV enforcement. Negotiations are under way between MSHA and Husch Blackwell, with a court deadline of March 9 to update the Sixth Circuit Court of Appeals regarding a possible settlement.

The POV case is not the first time the Husch Blackwell legal team has pushed back against measures intended to protect miners.

Leading Husch Blackwell’s team on the issue has been Henry Chajet. While an attorney for the firm Patton Boggs, Chajet successfully legally blocked the public release of a government cancer study related to the mining industry for more than 15 years. First published in March of 2012, the long-term scientific study linked exposure to diesel, methane, radon, and other carcinogens during underground non-metal mining to higher rates of lung cancer among miners.

For that effort, Patton Boggs appears to have overseen the formation of  a legal and regulatory coalition called the Methane Awareness Resource Group (MARG). Chajet and Bob Horn, founder of the Republican National Law Association and also a Patton Boggs attorney—on behalf of the Methane Awareness Resource Group—not only delayed publishing of the study  for years via a drawn out court battle, also convinced a federal judge to give the mining industry firms involved in that case an advanced copy of the study.

In an eleventh-hour attempt to deter dissemination of the study in 2012, Chajet sent a letter to scientific journals urging them to consult legal counsel before publication.

“This study and its resultant papers are the subject of ongoing litigation, and both court-imposed mandates and restrictions, as well as oversight and directives by the United States Congress,” wrote Chajet in that letter. “We respectfully request that you and your counsel carefully consider any intent to publish these papers, as well as the impact and consequences of any such publication or distribution.”

About a month after Chajet sent the letter to the journals, the study was published.

The conduct of MARG as it pertained to this study came under criticism in a 2006 article published in the American Journal of Public Health, authored by Celeste Monforton, a professor of public health at George Washington University.

“For nearly a decade, an alliance of mining firms, led by the MARG Diesel Coalition, has employed a variety of tactics to impede scientific research on and public health protections for workers exposed to high levels of [diesel particulate matter],” wrote Monforton. “MARG success is not without consequence. At some metal and nonmetal mines, in particular those affiliated with MARG, workers are being exposed to extremely high levels of [diesel particulate matter] despite a regulation that requires employers to reduce that exposure.”

For example, in March 2011—while still with Patton Boggs—Chajet submitted a regulatory comment to MSHA which decried its then-proposed pattern of violations rule.

“Mr. Secretary, we understand the need for a fair and equitable use of MSHA enforcement tools when necessary to achieve safety, as well as the need to reform the MSHA troubled enforcement system,” wrote Chajet. “We do not believe, however, that this flawed proposal will enhance safety. . . . We urge you to revoke, revise, and re-propose this rule to address the flaws” in the proposed role.”

In January 2013, the Obama Administration released its final version of the new POV regulations after the closure of the public commenting period. The following month industry trade magazine Coal Age published an op-ed co-authored by Chajet that offered a comparison to the game Monopoly, saying the new mandate set up a “go directly to jail, do not pass go” regulatory regime.

The tactics described by Monforton, including the use of federal courts as a delay tactic, lobbying, and involvement in the federal regulatory process, are being used once again by Chajet and his Husch Blackwell colleagues as a means to put an end to POV.

In March 2013, Chajet filed the lawsuit against MSHA on behalf of the National Mining Association, Kentucky Coal Association, and Ohio Coal Association calling for POV to be halted. As previously reported by TYT, Trump’s head of mining safety for the Mine Safety and Health Administration, David Zatezalo, served on the Board of Directors for the Kentucky Coal Association when that lawsuit was filed. Zatezalo was also the CEO of Rhino Resources at that time, the parent company of Rhino Energy LLC, a dues-paying member of the Kentucky Coal Association.

The MSHA now faces a March 9 court-ordered deadline to update a federal judge on the status of settlement negotiations for that case. Zatezalo stated at a February 6 congressional hearing that he will not recuse himself from taking part in those negotiations. A spokeswoman for MSHA previously told TYT that attorneys for the Labor Department—which includes the MSHA—cleared Zatezalo to take part in the settlement talks.

Phil Smith, director of communications and governmental affairs for United Mine Workers of America, told TYT that the union believes “a person cannot represent two parties in a dispute and must avoid even the appearance of conflict of interest.”

Smith also spoke to what the miners’ union believes is the importance of the POV rule.

“POV strengthens MSHA’s ability to focus on mine operators who demonstrate a disregard for health and safety,” Smith told TYT. “Removing the rule would allow operators to consistently violate the law while only receiving a slap on the wrist. This would no doubt increase accidents and fatalities in mines across the nation.”

Related: “Mining Safety Chief Deciding Whether to Settle Suit His Own Group Filed”

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