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Sounds Like a Plan … Or Does It? The Procedure for Approving Mine Plans Has Gone Completely Awry. By Christa Lee Rock Sometimes it seems like everything has changed in the mining industry since 2006 (at least in a regulatory sense). Passage of the MINER Act in 2006 brought reforms to everything from accident notification to penalty calculations to the implementation of emergency response plans at all underground mines. 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 ap‐ proval and prevent operators from obtaining meaningful judicial review. The past few years have witnessed a growing number of industry com‐ plaints that MSHA is attempting to make policy through the mine‐plan approval process. Operators worry that MSHA rou‐ tinely withholds plan approval until the operator agrees to implement heretofore‐unheard‐of require‐ ments. Operators accede to the agency's demands, only to find new mandates inserted when MSHA re‐ views 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 Pro‐ 40 ROCKproducts • OCTOBER 2011 gram Policy Manual, an Operator must invite a citation – literally ask the agency to catch it breaking the law – in order to get a determina‐ tion 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 (the Commission) can take years to rule on the citation. Recent Case 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 cita‐ tion 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 ac‐ cidents at the Sago and Crandall Canyon Mines. In both incidents, ap‐ proval of mine plans came under close scrutiny, and MSHA took criti‐ cism from all sides for its approval of allegedly deficient plans. Worse yet, MSHA was accused of im‐ posing plan modifications that actu‐ ally rendered the mines more unsafe than it would have been had the operators' proposed plans been approved. Christa Lee Rock, an associate with Pat‐ ton Boggs, advises clients in matters re‐ lated to complex civil and commercial litigation, insurance coverage litigation, environmental compliance and enforce‐ ment and the acquisition and protection of intellectual property rights. 303.894.6141, crock@pattonboggs.com 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 un‐ dertake 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 pro‐ cedures for contesting MSHA's re‐ fusal 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 Com‐ mission of the dispute. MSHA and the operator then have but 15 days www.rockproducts.com