By Henry Chajet and Robert Horn

On December 8, Congressman George Miller (D-Ca), the outgoing chairman of the House of Representatives’ Committee on Education and Labor, failed in his final effort as chairman to pass sweeping new safety law amendments aimed at increasing government enforcement powers, penalties and regulations. Chairman Miller’s “lame duck” Congressional strategy (to seek passage before the Democratic majority is replaced with a Republican majority in January) drew nearly unanimous Republican opposition and key Democratic opposition. The authors were pleased to participate in the industry efforts and now report on their experience—in the hope of benefiting future industry efforts.

While every member of Congress and every industry group supports workplace safety and an end to tragic workplace disasters, among the opponents to the Miller bill were members of Congress whose districts include thousands of safe and productive mines. They argued these safe companies do not need nor deserve increased government regulation and enforcement, particularly at a time of high unemployment. Other opponents argued the legislation should not be passed until the government disaster investigations are complete and the causes of the tragic failures are known and can be addressed. These were the key messages that led the successful opposition to the Miller legislation.

The legislation drew vocal opposition from every segment of the mining industry that was not “carved out” of its application in pre-vote compromises. Leading the “carve outs” were the stone, sand and gravel industry which was exempted from the bill several months ago by Chairman Miller. This occurred after the National Stone Sand and Gravel Association (NSSGA) argued its safety record did not warrant the legislation which would have adversely impacted every Congressional district since they all contain quarry operations.

Since the tragic Upper Big Branch (UBB) coal mine disaster, Congressman Miller and his supporters have attempted to pass OSHA and MSHA amendments supported by the administration and its labor union allies. They sought to justify increased penalties, expanded closure order powers and new regulatory mandates with arguments that ineffective enforcement powers led to the UBB disaster, the BP oil spill and other recent industrial disasters. Critics responded by urging the completion of government investigations prior to legislating solutions, by demonstrating the excellent safety records of industries and companies adversely impacted by the Miller legislation, and by describing the massive enforcement, penalty powers and budgets already provided to the federal agencies whose personnel were at the site of the disasters within days prior to their occurrence.   

Even a last minute Democratic strategy to remove OSHA amendments from the legislation and focus on the MSHA amendments, did not save Miller’s bill from opposition and defeat. Before the vote, the U.S. Chamber of Commerce joined the National Mining Association, the Salt Institute, the Industrial Minerals Association and various state associations in urging defeat of the unwarranted legislation.

Lessons learned from the defeat of Chairman Miller’s bill include: (1) safety law should not be created in the immediate aftermath of tragic disasters when the opportunity for neutral fact finding is reduced; (2) members of Congress and staff continue to require extensive briefings to provide information, data and context for their positions and actions; and (3) industry educational campaigns and lobbying makes a massive difference—even when faced with tragic disaster-induced legislative proposals.  

The defeat of the Miller legislation is a major industry win, albeit a temporary one, accompanied by promises from Republican and Democratic members to revisit safety law in the next Congress. The experience once again demonstrated the need for increased lobbying as well as public educational efforts aimed at explaining the role of modern mining, and its highly favorable safety record: two critical facts far too often hidden during Congressional debates focused on tragic disasters.  

Chajet and Horn are both partners in the Washington, D.C., office of Patton Boggs LLP. Chajet can be reached at jchajet@pattonboggs.com or 202-457-6511. Horn can be reached at rhorn@pattonboggs.com or 202-457-5232.