Aggregates Manager Digital Magazine
Issue link: http://read.dmtmag.com/i/708570
40 AGGREGATES MANAGER / August 2016 The mining industry finally gets an opportunity to present its case agaist MSHA's Pattern of Violations rule. Adam J. Schwendeman is an associate in Jackson Kelly PLLC's Charleston, W.Va., office, practicing in the Occupational Safety and Health Practice Group. He can be reached at 304-340-1077 or aschwende- man@jacksonkelly.com. Who Will Hear Plaintiff's Claims? A fter several years of struggle, the mining industry has finally found a forum to hear its long-sought challenge of the Mine Safety and Health Administration's (MSHA) 2013 Pattern of Violations (POV) rule. On June 16, 2016, Fed- eral District Court Judge James Graham found that the U.S. District Court for the Southern District of Ohio has jurisdiction to hear the claims of multiple plaintiffs (including the Na- tional Mining Association, the National Stone, Sand & Gravel Association, and the Portland Cement Association) against the Secretary of Labor and MSHA challenging the validity of their POV rule. See Ohio Coal Assoc. et al. and Murray Energy Corp. et al. v. Sec'y of Labor, Case Nos. 2:14-CV-2646, 2:15-CV448, 2016 WL 3350466 (S.D. Ohio June 16, 2016). The plaintiffs' journey began in March 2013 when they filed challenges to the POV rule in the U.S. Court of Appeals for the Sixth Circuit. The Secretary moved to dismiss the challenge, arguing that the court lacked subject matter jurisdiction to hear the claim because the federal appellate courts are only vested with jurisdiction to immediately review mandatory safety and health standards. The Sixth Circuit agreed with the Secretary and dismissed the challenges, holding that the POV rule was not a mandatory health or safe- ty standard and, therefore, it lacked subject matter jurisdiction over the challenge. Plain- tiffs then brought suit against the Secretary of Labor and MSHA in the U.S. District Court for the Southern District of Ohio. The plaintiffs set forth several allegations in their complaints, arguing that the rule vio- lated the Administrative Procedures Act (APA) as well as the Due Process Clause of the Unit- ed States Constitution. With regard to the APA claims, the plaintiffs allege that the POV rule exceeds the statutory authority granted to MSHA by the Mine Act because the new rule uses non-final citations. The plaintiffs argue that the Mine Act requires the use of finalized violations rather than non-final citations in a pattern of violations determination. The plain- tiffs also argue that MSHA failed to subject the POV and Corrective Action Plan criteria to notice-and-comment rulemaking and that the POV rule was arbitrary and capricious. With regard to due process, the plaintiffs allege that the POV rule eliminates the procedural safeguards in place under the 1990 rule and, with those safeguards removed, plaintiffs are not afforded notice or hearing before they are deprived of their property rights via with- drawal order. The Secretary once again moved to dis- miss the plaintiffs' claims, arguing, among other things, that the district court lacked subject matter jurisdiction. The Court rejected the Secretary's arguments and found that it held jurisdiction to hear the claims. Citing Thunder Basin, the Court acknowledged that the Mine Act precludes district court jurisdic- tion over pre-enforcement claims that attempt to side-step or preempt the Mine Act's review scheme. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994). The Court noted, by Adam J. Schwendeman ROCKLAW