Time and again, they referred to the fact that MSHA issued fewer citations in 2010 than they did in 2009 and wondered out loud what the operators were upset about. Of course, they did not mention that penalties in 2010 were significantly higher than the prior year and that both S&S percentages and elevated enforcement rates have risen measurably as well.

What has my attention, however are two contrasting trends. MSHA appears to be taking an ever expanding view of its regulations, its power and its reach, while, at the same time, we are seeing more and more decisions questioning aggressive MSHA enforcement.

For instance, despite a series of decisions by administrative law judges that defects in equipment found during required pre-operational inspections should not be the subject of citations, MSHA continues to issue citations in those situations and stridently defends its enforcement strategy. This seems especially odd, since, when you boil it down, it essentially penalizes operators for 1) complying with the inspection requirements and 2) doing the inspections thoroughly enough to find various defects. Without belaboring the point, I have yet to be convinced these actions really advance the cause of safety.

But that’s just the tip of the iceberg. MSHA has now begun demanding more and more access and more and more documents and the Review Commission has recently upheld MSHA’s actions in that regard at least with respect to requests for medical records in connection with what they call Part 50 audits (accident reporting audits for those who don’t speak fluent regulation). In addition, MSHA has started to assess larger and larger penalties which are not just limited to those companies that can afford them.

But these trends seem to presage potential problems. The more MSHA pushes, the more likely it is that at least one federal judge (or group of them) will take the view that MSHA has simply gone too far. A good example of this is the recent decision by the D.C. Circuit reversing the Commission’s ruling that modifications of Section 103(k) orders are subject to motions for temporary relief. Of particular interest was the Court’s observation that the language which the Commission had found unclear was, to those judges at least, “a model of clarity.”

At the rate the agency is going, it seems to me it is becoming more and more likely that various courts will begin to take a more objective, and restrictive, view of the limits of MSHA’s powers.

But let’s back up for a minute. As a lawyer, I am more than happy to try and resolve all of these issues through litigation. After all, that’s what pays the bills. But continued and more intensive litigation has two problems; first, it’s expensive and second, it’s inherently risky. After all, litigation ultimately means we are all leaving the decision up to a judge who might not have a clue about the practical implications his or her decision might have on the industry. As an alternative, there could be a forum in which we all can start to discuss ways to move together toward the common goal of improving safety and health in our industry.

The gatherings co-sponsored by MSHA and industry in the Western, Rocky Mountain, Southwestern and Southeastern metal/nonmetal districts and Coal District 11 are a great start. Just because we are fighting in the courts doesn’t mean we can’t exchange ideas about how the agency and the industry can advance their common cause in a less adversarial way. We can only hope the programs will continue and hopefully spread beyond the relatively limited areas they are in now.

Another such forum would be the newly established safety committee formed by the Society of Mining Engineers. The committee is in its first year of existence, but it’s at least worth exploring how it can work as an “honest broker” to facilitate the exchange of ideas between the agency and the industry. That committee strikes me as the best forum in which to exchange technical information which could go far in guiding us all toward better approaches to difficult issues like ventilation, roof and ground control and risk assessment methodologies.

But melding these nascent efforts into meaningful places to have frank discussions means they have to be considered “safe harbors” to bring up difficult technical issues without risking enforcement consequences, lest lawyers like me do our best to stifle the exchange in an effort to protect our clients. In addition, each side should consider devoting enough resources to the efforts to make them meaningful opportunities for technology transfer and information exchange, rather than pleasant, albeit useful, social gatherings.

Considering the amount of time, money and effort we are currently spending on litigation, this seems like an easy choice. But it’s going to take commitment from all of the parties before it can go forward. Let’s see what happens.

Savit is a partner in the Denver office of Patton Boggs LLP. He can be reached at 303-894-6117 or at msavit@pattonboggs.com.