By Cindy Skrzycki
Tuesday, October 31, 2006; D01

The Senate sent Richard Stickler' s nomination to become the top U.S. mine-safety official back to the White House -- twice. Widows and relatives of dead miners pleaded that he not be given the job. Stickler lacked the support of lawmakers from key mining states, and some newspaper editorials criticized him as an industry insider.

None of this fazed the White House. When Congress departed for its Election Day recess, President Bush on Oct. 19 made Stickler head of the Mine Safety and Health Administration in the Department of Labor . His tenure will last though the end of the Senate's next session, sometime next year.

In Washington parlance, it's called a recess appointment, a maneuver often used by the White House to bypass political opposition. The Senate goes out on recess, leaving the door open for the president to put in his choice. It's sort of like appointing a chief executive without the board of directors getting a vote.

"It strikes me as a sign of stubbornness and weakness," said Paul Light , a professor of public service at New York University and an expert on the executive branch. "Recess appointments can do a great deal of damage and not have the support of the agency. It sets the stage for intense conflict over rules" between the career staff members and the unconfirmed appointee.

Stickler, 62, was director of the Pennsylvania Bureau of Deep Mine Safety from 1997 until 2003 after being a coal miner and holding various management jobs in the industry for 30 years. He came out of retirement to take the mine-safety job.

Stickler doesn't seem bothered by the political outcry over his appointment, which was heightened because his confirmation hearing in January closely followed the Sago disaster that killed 12 coal miners in his home state of West Virginia.

"I am coming into this job positive and focusing on things that count," he said in a recent interview. The agency has not had a permanent director since 2004 when David Lauriski , another former mining executive, resigned. David Dye , a Labor Department official who has been filling in since, had no experience in mine-safety issues.

The Mine Safety and Health Administration "has been run by industry insiders," said Tony Oppegard , former general counsel to Kentucky's mine safety agency and an adviser at MSHA during the Clinton administration. "The whole emphasis has been on compliance assistance. It's been a major failure of the administration. They don't look for safety advocates."

Stickler is taking on a job few would be willing to tackle: Fatalities in the industry this year are the highest since 2002. They now total 66, including two deaths the day after his appointment.

The pressure is on from Congress to enforce rules and increase penalties, as well as improve safety. All this comes as the nation's mining companies are predicting record demand for coal, according to the National Mining Association , a Washington-based trade group.

Besides the practical challenges of the job, Stickler faces the prospect that his Democratic critics may soon have even more to say over his performance.

If the Democrats take over leadership of the Senate in next week's elections, MSHA's prime overseer will be Sen. Edward M. Kennedy (D-Mass.), now the senior minority member of the Senate Health, Education, Labor and Pensions Committee . Throughout Stickler's confirmation hearing, Kennedy was an outspoken critic of his appointment.

"The Mine Safety and Health Administration needs stronger oversight by Congress to guarantee that the safety laws are strictly enforced and that serious or repeat offenders are penalized with more than a slap on the wrist," Kennedy said in a statement last week.

Sen. Arlen Specter , a Pennsylvania Republican, also opposed the backdoor appointment.

"I don't think that Mr. Stickler is the right man for the job and I told that to the White House several months ago; but under the Constitution, the president has the authority to make an interim appointment which is only for a limited term."

Democratic Sens. Robert C. Byrd and John D. Rockefeller IV , both of West Virginia, also came out against confirmation because of concerns about the safety records of mines that Stickler managed while in private industry. The nominee says 80 percent of the mines he managed had a good to outstanding safety record.

The recess appointment may also ensure that thousands of members of the United Mine Workers of America, which opposed the nomination, get out to vote against Republicans next week, according to union spokesman Phil Smith .

"In doing this, he [Bush] has said what he is going to say about how important coal miners are, even in states like Pennsylvania and West Virginia where his supporters are looking for votes," Smith said.

The National Mining Association, which represents the companies Stickler will regulate, stayed out of the fight, except to say the agency needs a full-time director.

Stickler said his first priorities will be finding the root causes of this year's accidents, hiring more mine inspectors, and working to implement the regulations called for by the safety law Congress passed after the Sago disaster.

Last week, some 75 miners traveled to an MSHA district meeting in Morgantown, W.Va., to try to see Stickler. He wasn't there, but promised by telephone that he would talk with them and go out to the coalfields. He also announced new instructions for inspectors on how to assess whether a safety violation is flagrant and warrants a civil penalty up to $220,000, a signal to his critics that he is on the job.

Cindy Skrzycki is a regulatory columnist for Bloomberg News.