US District Court agrees to expedite NSSGA’s lawsuit against MSHA over POV rule

Attorney’s for the National Stone, Sand and Gravel Association were successfully about to convince a US District Court in Ohio to expedite the organization’s lawsuit over the Mine Safety and Health Administration’s controversial Pattern of Violations rule.

The NSSGA said in a press release that its counsel met with Magistrate Judge Elizabeth Preston Deavers for a preliminary conference July 14 to discus the lawsuit. The NSSGA wasn’t able to make any headway on settlement discussions, but the judge did agree to speed up the process of determining if the court would hear the case at all.

The rule, which was finalized in 2013, was implemented to allow MSHA to threaten to shut down mines with a large number of Significant and Substantial citations during MSHA inspections. However, opponents say it’s unfair because MSHA is able to use non-final and still-contested violations when deciding what punishment to hand down to mining facilities.

The NSSGA has said that studies have shown that 30 percent of all Serious and Substantial citations are later changed to be non-Serious and Substantial or dropped entirely.

“NSSGA asserts that MSHA’s faulty plan stands in defiance of an operator’s right to Due Process, enshrined in the Fifth Amendment to the Constitution,” the organization said. “NSSGA also asserts that, in developing the rule, MSHA violated the Administrative Procedures Act by not clearly stating the criteria needed for designation of ‘Pattern’ status.”

After the rule was enacted, the NSSGA filed a lawsuit. MSHA, in turn, filed a motion to dismiss the suit. No ruling has been made yet on MSHA’s motion to dismiss.

The Department of Justice suggested four briefs and responses over the course of a few months to decide weather the District Court should hear the NSSGA’s case. But Deavers shot down that suggestion. Instead, should MSHA’s motion to dismiss be denied, the District Court will decide the case based on the pleadings.


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