MSHA’s POV Rule Challenged in Court

A district court judge in Southern Ohio will hear arguments on April 12 on whether the 6th U.S. Court of Appeals should hear the case against MSHA’s Pattern of Violations (POV) rule brought up by the National Stone, Sand and Gravel Association (NSSGA) and other associations.

There are several substantial problems with the POV rule, most notably that it ignores the due process rights of mine operators by allowing MSHA to include un-adjudicated citations in its calculations for determining whether a mine deserves to be placed into Pattern status. Pattern status subjects a mine to closure and massive losses.

NSSGA believes that these defects in the rule render the rule an MSHA power grab, while dismissing the Due Process rights of operators assured in the Fifth Amendment of the Constitution.

NSSGA believes that the District Court has requisite jurisdiction for hearing the complaint and is seeking a future hearing on its merits. However, the court previously refused to hear the arguments of NSSGA and its fellow litigants in 2012, and dismissed the case on jurisdictional grounds.

The association plans to assert again that MSHA violated the Administrative Procedures Act by not including in rulemaking the manner of determining POV criteria, and that the POV rule denies mine operators due process rights.

“NSSGA continues to work to safeguard the rights of operators to enjoy the Fifth Amendment guarantee of Due Process, which is critical to effectively manage for compliance with standards,” said NSSGA Vice President of Safety Joseph Casper. NSSGA will keep members updated on this important issue.

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