Court Denies Operators’ Pattern of Violation Rule Stay Request
Friday, December 6, 2013
Posted by: Darrell Smith
A panel of the Sixth Circuit Court of Appeals has denied a request by a coalition representing mine operators for a stay of MSHA’s pattern of violations (POV) rulemaking.
The coalition went to court seeking a stay last month, one day after asking MSHA in a letter to grant it. Because the coalition did not wait for an answer from the agency, the request could have been denied on that basis alone, the panel said in a three-page denial order Tuesday. Subsequent to the coalition’s court action, MSHA filed a brief opposing the stay.
MSHA’s POV rule went into effect in March, and the corporate coalition filed suit shortly thereafter. MSHA has since listed four underground bituminous coal mines as POV mines under its new rule.
The three-judge panel essentially said the coalition’s request did not satisfy any of four factors that must be weighed in considering a stay request. The factors are: whether the coalition has made a strong case it is likely to succeed on the merits, whether it will be irreparably injured absent a stay, whether issuance of a stay will substantially injure other interested parties and where the public interest lies.
Responding to the first criterion, the jurists noted that it is "unclear” if the coalition’s case would succeed because "[t]here is a threshold jurisdictional question in this case that must be answered . . . ” MSHA has argued the POV rule is a regulation. As such, the appeals court does not have jurisdiction to review it directly. Rather, it may only do so indirectly after the Mine Act’s administrative review scheme has run its course, according to the agency.
Nor has the coalition demonstrated irreparable harm, the jurists opined, because the petitioners have not quantified the " ‘substantial and costly operational changes’ " they claim the companies face which have been targeted for POV status. Finally, remarking that the last two factors "merge when the Government is the opposing party,” the three judges said, "There is always a public interest in increasing mine safety.”
MSHA’s POV rule is opposed by the National Mining Association, National Stone, Sand & Gravel Association, Portland Cement Association, Kentucky Coal Association, Ohio Coal Association, Murray Energy Corp. and four Murray subsidiaries. The Industrial Minerals Association-North America has filed an amicus brief in the case.