The House committee markup of the Democratic Mine Act amendments in July 2010 suggests that all members were prepared to legislate if a bipartisan compromise can be reached. However, provisions of the Rockefeller and Miller bills that included OSHA amendments to enhance whistleblower protections and victims’ rights as well as to increase civil and criminal penalties across American industry are unlikely to pass in the 112th Congress due to broad-based Republican, moderate Democrat, and business opposition. Mine safety legislation, however, is more likely to receive bipartisan consideration.

Rep. John Kline (R-Minn.) is expected to chair the House Education and Labor Committee in the new Congress. While he previously considered tightening mine safety laws to “clamp down on unsafe operators,” job creation is his priority — as evidenced by his comment: “If I am selected by my colleagues to chair the Education and Labor Committee, I will immediately focus this panel’s work on the steps needed to restore economic certainty and promote job creation.”

Moreover, Kline reportedly wants to wait until the completion of the investigation of the Upper Big Branch coal disaster before addressing mine safety. Following the Upper Big Branch disaster, House Republicans committed to strengthening the MSHA “pattern of violations” system, increasing penalties and criminal sanctions for willful violations, stopping operators from “frivolously” challenging penalties, and promoting new safety technology. Legislative action on these issues in the 112th Congress likely will be preceded by oversight hearings, including an examination of whether MSHA actually needs additional authority, given an inspector general report criticizing MSHA for not fully using its authority.

Finally, the 112th Congress, with a Republican House majority rendering Democratic priorities less likely to be achieved, is expected to cause the Administration to accelerate its efforts to achieve goals through agency actions. That means more regulatory proposals and policy interpretations as well as further increases in enforcement actions — not only collecting increased penalties, but forcing changes in company operations and providing evidence for lawsuits. In turn, agency actions will result in further Congressional oversight and investigations and, potentially, agency budget and appropriations cuts. An interesting two years lies ahead under our soon-to-be-divided government. AM

Greg Louer is a public policy advisor in the Washington, D.C., office of Patton Boggs LLP. He can be reached at 202-457-6418 or at glouer@pattonboggs.com.