NMA brought the Ohio court suit against MSHA’s rule issued in January and effective March 25. The NMA has objected to MSHA’s pending POV determination based on citations and orders already issued—instead of traditional POV determinations based on final Federal Mine Safety and Health Review Commission orders following violation adjudication.

Through constitutional considerations, the NMA argues the proposal could deny miners due process protections under the 5th Amendment—considerations ignored by MSHA in the final rule as well. NMA representatives also note the MSHA final rule lacks criteria by which POV determinations are to be made—bypassing “notice and comment” requirements crucial to due process itself.