But the biggest change felt at some mines isn’t the result of any new law or regulation—it’s the procedure for approving mine plans. According to some in the industry, the process has gone completely awry.

The only hope of reversing the trend may lie in another relic of 2006—the procedures for reviewing Emergency Response Plans under the MINER Act—as well as a recent court ruling that questions MSHA’s authority to withhold mine plan approval and prevent operators from obtaining meaningful judicial review.

The past few years have witnessed a growing number of industry complaints that MSHA is attempting to make policy through the mine plan approval process. Operators worry that MSHA routinely withholds plan approval until the operator agrees to implement heretofore-unheard-of requirements. Operators accede to the agency’s demands, only to find new mandates inserted when MSHA reviews the plan six months later.

Adding to the problem is the fact that neither the Mine Act nor MSHA regulations provide a direct method for contesting agency decisions to withhold mine plan approval. Under procedures defined in MSHA’s Program Policy Manual, an operator must invite a citation—literally ask the agency to catch it breaking the law—in order to get a determination that its proposed mine plan was legal in the first place. Operators have been loath to spend thousands of dollars to litigate a process that repeats itself twice a year. Even when they do take MSHA to the mat, the backlogged Federal Mine Safety and Health Review Commission can take years to rule on the citation. In a case recently filed before the U.S. District Court for the District of Columbia, a group of coal companies argue that MSHA further avoids scrutiny of the mine plan approval process by refusing to issue a citation for unapproved mine plans. Elk Run Coal Co. v. United States Dept. of Labor, Docket No. 10-1056 (D. D.C.). Thus, there is effectively no check on the agency’s power to impose new requirements in mine plans.

MSHA’s reticence to approve mine plans seems to arise from other events occurring around 2006—the major underground coal mining accidents at the Sago and Crandall Canyon mines. In both incidents, approval of mine plans came under close scrutiny, and MSHA took criticism from all sides for its approval of allegedly deficient plans. Worse yet, MSHA was accused of imposing plan modifications that actually rendered the mines less safe than it would have been had the operators’ proposed plans been approved.

But the question remains: What is to be done? Hope may be found in the dispute resolution procedures for Emergency Response Plans (ERPs). Also a creature of the 2006 MINER Act, ERPs require operators to undertake a range of safety measures that make it easier to locate trapped miners and keep them alive while they await rescue. However, because operators were required to implement measures that relied on new and untested technologies, Congress built in procedures for contesting MSHA’s refusal to approve an ERP. Under Commission Procedural Rule 2700.24, MSHA has only two days from issuance of a citation related to ERP approval to notify the Commission of the dispute. MSHA and the operator then have 15 days to submit all of their evidence on the matter to an Administrative Law Judge, who must resolve the dispute 15 days later. Start to finish, the process takes a month, and it’s over long before the next round of plan review and approval starts again.

The six ERP cases decided since the Commission rule took effect in March 2007 show promise. All have been resolved in a neat 30 days. Although an operator prevailed in only one case, that decision shows the willingness of the Commission to question MSHA’s “one size fits all” approach to plan approvals. Peabody West Mining, LLC, Docket No. LAKE 2010-769, 770-E (July 6, 2010) (ALJ decision vacating citations for failure to implement electronic tracking devices capable of tracking miners within 200 ft). Moreover, the number of ERP cases brought to the Commission far exceeds the number of cases challenging MSHA’s refusal to approve mine ventilation and roof control plans in the same time period. This suggests the expedited procedures are giving operators a chance at meaningful review. External oversight from the Commission may be making mines safer in the process.

Can this expedited procedure ever be brought to the larger issues of ventilation and roof control plans? That remains to be seen. The court in the Elk Run Coal case recently affirmed the right of operators to sue MSHA for its “pattern and practice” of disapproving or refusing approval of mine plans unless operators implement MSHA’s demands. MSHA may now be forced to turn over documents and information in the litigation that show its efforts to strong arm operators into infeasible and ill-advised plans. If the operators can prove MSHA denies them due process by simply refusing to issue a citation over disputed mine plans, MSHA could be forced to adopt a more transparent process for resolving these issues.

If all goes well, in the end, operators may have a chance at a more cooperative dialogue with MSHA—and an opportunity to challenge the agency when it’s wrong. That’s a plan we can all support.

Rock is an associate with Patton Boggs LLP. She can be reached at 303-894-6141 or at crock@pattonboggs.com.