New S&S Test Lowers Citation Bar
On Sept 19, 2025, the Federal Mine Safety and Health Review Commission redefined the significant and substantial (S&S) test under the Mine Act, adopting a two-element standard that it characterized as easier for the Secretary of Labor to meet. The key question for operators:
Q: Can we contest existing non-S&S citations retroactively under the old standard before this takes full effect?
Treat this as a litigation-risk call, not a technicality. The Commission’s ruling lowers the threshold, and MSHA and the Solicitor are likely to invoke it in any non-final case unless a judge limits its reach.
Bottom line: Plan as if the new S&S test will be applied to pending, non-final cases, and do not bank on the Mathies framework. The immediate impact is higher odds that contested non-S&S citations could be reclassified as S&S, raising penalties and Pattern of Violations exposure.
Our position: Based on the Commission’s decision explicitly describing a lower, easier S&S threshold, we recommend reevaluating current dockets and settlement posture now, assuming applicability to pending matters. Here’s why: if the Secretary can show a hazard and that the violation could contribute to it, S&S becomes materially easier to prove, increasing penalty and Pattern risk. What remains unknown: whether the Commission or appellate courts will limit the decision to prospective cases and how quickly MSHA formalizes guidance.
Three questions to assess your exposure:
1. Do your active, non-final cases include violations tied to a clear hazard that the violation could contribute to?
→ If YES: Treat as high-risk for S&S and adjust settlement posture now.
→ If NO: Continue contesting under your existing strategy while monitoring guidance.
→ DON’T KNOW: Review citation narratives, inspector notes, photos, and witness statements.
→ Framework: The new test turns on hazard existence and causal contribution, not a multifactor probability analysis.
2. Would reclassification to S&S materially move a site toward Pattern of Violations or exceed your litigation budget?
→ If YES: Prioritize mitigation and targeted settlement to avoid S&S findings.
→ If NO: Focus resources on defending strongest facts and preserving issues for appeal.
→ DON’T KNOW: Check MSHA Pattern screening reports and recent penalty history by site.
→ Framework: S&S is the gateway to Pattern status and higher penalties.
3. Do you have a credible legal argument that the new test should not apply to your pending case?
→ If YES: Preserve it in filings but budget as if you lose that issue.
→ If NO: Assume applicability and recalibrate risk and reserves accordingly.
→ Framework: Until clarified, expect MSHA and ALJs to apply the new standard.
What remains unknown: Whether courts limit the decision to prospective application; how ALJs articulate evidentiary thresholds for hazard and contribution; when MSHA issues field guidance aligning enforcement with the new test.
Priority level: PREPARE NOW - Reassess open dockets and controls before year-end to avoid unplanned S&S exposure.
Recommended actions:
☐ Inventory all pending non-S&S cases and tier by hazard-and-contribution strength within 60 days.
☐ Reevaluate settlement posture and reserves for high-risk cases within 60 days.
☐ Implement targeted controls and supervisor briefings on top hazards before year-end.
☐ Coordinate with counsel on model briefs preserving applicability arguments within 60 days.
Next check-in: Upon Commission or appellate guidance clarifying applicability to pending cases or MSHA field instructions.
