Coal Age

DEC 2018

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56 December 2018 legally speaking Safety Law Predictions for 2019-2020 by henry chajet and robert horn Unless you've been off the grid — way off — or maybe off the planet, you know the political campaigns are over and the election results are final. If you are a Democrat, you might be pleased that the 2018 midterm elections have re- turned control of the 2019-2020 House of Representatives to your party. If you are a Republican, you might be pleased that your party retained control of the Senate and even gained a few seats on the Democrats. Either way, and prac- tically speaking, what you can expect from all of this is legislative gridlock and two years of sharply partisan over- sight investigations and hearings in the House of Representatives. In the movie "Charlie Wilson's War," Congressman Charlie Wilson is asked: "Why is Congress saying one thing and doing nothing?" He responds, "Well, tradition, mostly." It's a good joke, pri- marily because it's so close to the truth. In 2019-2020, tradition won't be the only reason for legislative gridlock. With the House controlled by one party and the Senate controlled by the other, getting anything done in Washington over the next two years will be a lot more diffi- cult. Not impossible, but more difficult. In contrast, safe production at our nation's mines will thankfully continue and hopefully increase, with help from the recent tax cuts, our healthy economy and President Donald Trump's efforts to increase exports, and trade with other countries on more favorable terms. However, delays in the Trump admin- istration's promised regulatory reforms may be costly. There will be increased public criticism from mining opponents, and production cost increases from agen- cy personnel seeking to institute their own initiatives, or those of their union and environmental allies. Agency per- sonnel likely will seek to secure and grow their turf during a period of gridlock and potential agency cost cutting or reorgani- zation. Democratic Party union and en- vironmental movement supporters will oppose regulatory "rollbacks," and reig- nite prior initiatives like mandated wage increases, labor law advantages, and ex- panded health protection rules. Pending mine safety issues could impact former President Barack Obama era regulations on "pattern of violations." In addition, the Trump administration's Department of Labor (DOL)/Mine Safety and Health Ad- ministration (MSHA) policy may seek to preempt expected Democratic criticism by "blurring the lines," including expand- ed use of coal inspectors for non-coal mines, increased penalties, restricted penalty settlements, and the expanded use of mine closure injunctions for tasks like penalty collections. If the mining industry's safety per- formance continues to improve, the Congress likely will not focus on MSHA initially in 2019, but instead emphasize major issues that remain to be resolved regarding health care, immigration, government spending and ongoing in- vestigations. Should the industry suffer a major disaster or the agency trigger extreme union complaints, it could re- sult in House oversight hearings, with the potential to further prompt MSHA actions, counterbalanced with White House and Office of Management and Budget (OMB) appeals. Who Will Lead the House Committees? For the most part, the existing commit- tee structure will become the basis of the new committee arrangements that the Democrats will put in place in 2019. What follows is a listing of the current and po- tential future leadership of the House and Senate committees that will exercise jurisdiction over mining-related issues: The House Education and Workforce Committee Congressman Bobby Scott of Virginia-3 full committee chair; and Congressman Mark Takano of Califor- nia-41 Workforce Protections Subcom- mittee chair. The House Energy and Commerce Committee Frank Pallone of New Jersey-7 full com- mittee chair. The House Appropriations Committee Nita Lowey of New York-17 full commit- tee chair; and Rosa DeLauro of Connecticut-3 Labor and HHS Subcommittee chair. The Senate Health, Education, Labor and Pensions (HELP) Committee Lamar Alexander of Tennessee, full committee chair; and Johnny Isakson of Georgia, Employ- ment & Workplace Safety Subcommit- tee chair. The Senate Appropriations Committee Richard Shelby of Alabama full commit- tee chair; and Roy Blunt of Missouri Labor HHS Sub- committee chair. We are not saying all is lost, from an administrative, regulatory and legisla- tive perspective. A divided government provides unique opportunities, espe- cially because a large part of the Trump administration's economic develop- ment program is based, in part, on the revitalization of the mining industry — especially coal mining. There will be ob- stacles and challenge, but also oppor- tunities for effective advocacy through congressional oversight, strong allies in both the House and Senate, and within the administrative agencies, including OMB and the domestic policy staff at the White House. We expect two years of D.C. gridlock, marked by occasional high points that will support increasing mining industry achievements. Henry Chajet is senior counsel and Robert Horn is a partner with Husch Blackwell LLP. Chajet can be reached at henry.chajet@ Horn can be reached at

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