The case that strengthened MSHA’s bargaining position is Mach Mining LLC v. Secretary of Labor, No. 12-358 (Seventh Circuit, August 26, 2013). After Mach Mining spent eight months negotiating with both district and national MSHA officials over part of its ventilation plan, the two sides still could not agree. Following a procedure in MSHA’s Program Policy Manual, in order to challenge MSHA’s decision in court, Mach sought a technical violation for operating without an approved plan.

An administrative law judge of the Federal Mine Safety and Health Review Commission found the secretary of labor had met his burden of showing that his refusal to approve the plan was not arbitrary and capricious. On appeal, a majority of the commission upheld the judge’s ruling. Two commissioners dissented, arguing that MSHA should have had to prove the operator’s plan was unsuitable and MSHA’s was suitable.

On further review, the Seventh Circuit agreed with the majority of the commission. It ruled that when MSHA considers a ventilation plan, it wears its policymaking (or “legislative”) hat, rather than its enforcement hat. According to the court, Congress wanted the commission to review MSHA enforcement decisions under a “de novo” standard, taking a completely fresh look at the law and facts. In such enforcement matters, MSHA has the burden to prove by a preponderance of the evidence that it acted properly.

When MSHA enacts regulations or sets policy, however, it acts in its role as an expert in the Mine Act and in mine safety, according to the Seventh Circuit. The court held that at those times, Congress expected the commission and courts to defer to MSHA’s expertise. As a result, MSHA policymaking or regulations (and, thus, a district manager’s rejection of a mine ventilation plan) may be overturned only if MSHA’s decision was arbitrary and capricious or an abuse of its discretion.

Of course, there is a significant difference between MSHA establishing a full-blown regulation and merely approving a mine ventilation plan submitted by an operator. A regulation is subject to an extensive, formal notice-and-comment rulemaking process. MSHA must explain and support its policy choices in the face of wide-ranging and substantial comments and criticism. The law requires that regulations undergo a thorough review and become final only after approval at the highest levels of MSHA.

Approval of a mine-specific plan, by contrast, involves private, informal discussions between the mine operator and MSHA. The decision can rest solely in the hands of the agency’s district manager.

Providing the same deferential review both for such formal rulemaking and MSHA approval of mine plans is now commission law nationwide and, with Mach Mining, has received a respected appellate court’s blessing. Even if a mine operator elsewhere sought a second opinion from another court of appeals, that court likely would give weight to the Seventh Circuit’s decision.

Operators may feel the impact of Mach Mining well beyond ventilation plans. MSHA likely will decide that the Seventh Circuit’s reasoning in Mach Mining, which involved a ventilation plan, applies equally to other mine-specific plans MSHA must approve. Commission precedent already has applied the same deferential review standard to emergency response plans. In fact, the Seventh Circuit referred generally to “plans submitted by industry participants for approval,” which Congress required “where mine safety could be addressed effectively only in a mine-specific context.” Along with emergency response plans, the court also specifically mentioned roof control plans and emergency shelter plans.

Deference to MSHA plan approvals could spread as MSHA develops new approval requirements. For example, MSHA’s new Pattern of Violations rule contemplates that mines that have or soon may have pattern status will submit “corrective action programs” to MSHA for approval and adoption. These programs will impose additional compliance measures on mines above and beyond current statutory and regulatory mandates. Arguably, MSHA’s decision to accept or reject such programs could be entitled to the same judicial deference described in Mach Mining, if the agency has its way.

Likewise, MSHA could take the same view regarding suggested “mine safety and health management programs.” It already has held hearings and accepted comments on such programs. Should MSHA require such programs in the future (through notice-and-comment rulemaking), the agency’s decision to approve or disapprove such programs also could receive Mach Mining deference. These programs could touch on nearly every aspect of a mine’s activities, thus expanding a mine’s compliance obligations significantly while limiting its opportunity for judicial review and appeal.

So, what does Mach Mining mean in immediate, practical terms?

First, with MSHA district managers having almost unreviewable authority to approve or reject mine plans, operators have limited leverage in the plan approval process. A plan rejection often will survive court review even if it is not well-justified. This can be especially problematic where MSHA has not had the in-house expertise to evaluate the plan in a proper and timely manner.

It also means that MSHA likely will be more confident in demanding operator concessions during plan negotiations. For operators, the cost-benefit analysis may have become more straightforward (if less attractive) in deciding whether to swallow a more challenging MSHA demand in a plan or to pursue litigation. That marginally more burdensome plan provision, which the operator views as unhelpful or unnecessary, becomes a little more tolerable when MSHA’s determination is likely to receive significant deference in any court appeal.

Second, operators should prepare to succeed at MSHA district manager level. That is where the battle will have to be fought and decided in most cases. Consider and anticipate how the district manager will respond to various plan details. Operators should be able to explain and justify their plan submissions up front, even using experts. They should make clear how the plan serves the purposes set out in the applicable Mine Act section or regulation requiring the plan, how the plan will enhance compliance, and how the plan contributes to safety.

While many mine operators have tried to make a strong case before MSHA district managers all along, in the past, they knew they could always appeal an MSHA rejection. After Mach Mining, no amount of litigation resources is likely to overturn an MSHA decision. As a result, operators should consider seriously consulting with an experienced lawyer from the outset to help build, support and argue the case for their plan at the first opportunity.

Avi Meyerstein is a shareholder in the Washington, D.C., office of Jackson Lewis P.C. Meyerstein focuses on civil, commercial, antitrust, and safety and health litigation. He has served as lead associate in major antitrust actions in federal district and appellate courts. He can be reached at