New S&S Test Raises Citation Risk
On September 19, 2025, the Federal Mine Safety and Health Review Commission redefined the Significant and Substantial (S&S) test to ask only whether a violation could contribute to a hazard and whether that contribution is significant. MSHA inspectors will have an easier path to sustain S&S. Here is how this affects your operations:
Q: What violation types at aggregate/industrial mineral ops most often get S&S designation under this looser test?
Think in terms of hazards first, then violations that plausibly feed them. Under the new test, categories where a violation has a clear causal line to a serious harm will tip to S&S more often.
Bottom line: Expect more S&S on respirable dust exposure (especially drilling/crushing), inadequate guarding on conveyors/rotating equipment, and mobile equipment interaction controls (traffic separation, berms, seat belts) because violations in these areas obviously contribute to serious hazards. Recordkeeping or paperwork-only issues remain less likely to be S&S unless they undercut a control that prevents serious harm.
Our position: Based on the Commission’s refocus on hazard contribution and statements that S&S findings are now easier to uphold, we recommend reallocating Q4 spend toward dust controls and guarding at industrial mineral sites. Here’s why: these categories produce common, high-severity hazards and typical violations plainly contribute to them, satisfying the new test. We also recommend tightening mobile equipment controls where people and machines mix. What remains unknown: how quickly inspectors and judges will apply the new test, which categories will dominate early decisions, and how MSHA will reflect this in Pattern of Violations screenings.
Three questions to assess your exposure:
1. Do current operations present serious hazards where controls are imperfect (dust at drilling/crushing, pinch points, people-vehicle interfaces)?
→ If YES: Treat related gaps as S&S-likely and move to engineering fixes first.
→ If NO: Document your hazard analysis and control verification to preserve defenses.
→ DON’T KNOW: Pull workplace exams, exposure data, and near-miss reports for the last 12 months.
→ Framework: S&S now turns on whether a violation could contribute to a real hazard, not on detailed likelihood modeling.
2. Are there violations that could plausibly contribute to those hazards (e.g., missing/inadequate guards, ineffective dust suppression/ventilation, weak berms or seat belt compliance)?
→ If YES: Prioritize durable engineering controls over warnings or training alone.
→ If NO: Maintain preventive maintenance and change management to keep it that way.
→ DON’T KNOW: Check recent MSHA citations, maintenance work orders, and corrective action logs.
→ Framework: Contribution is enough; causation need not be the sole or most likely path.
3. Would the resulting harm be serious if the hazard materialized (e.g., silica disease, amputation, runover/rollover)?
→ If YES: Expect S&S designations and plan for higher penalties and POV risk.
→ If NO: Keep controls proportionate but monitor for drift toward higher severity.
→ Framework: Severity now weighs heavily; low probability does not preclude S&S where outcomes are grave.
What remains unknown: How consistently field inspectors will apply the new test across districts. Which violation categories will anchor early Commission decisions and shape precedent. How MSHA will adjust Pattern of Violations screens to reflect increased S&S counts.
Priority level: PREPARE NOW - Rebalance controls before year-end to stay ahead of elevated S&S and POV exposure.
Recommended actions:
☐ Within 60 days, run targeted audits on dust-generating circuits, guarding, and mobile equipment interactions; flag any gap as S&S-likely.
☐ Within 60 days, shift capex to engineering: water/foam or LEV at drills/crushers, enclosed cabs, standardized guard kits, and traffic separation controls.
☐ By year-end, update workplace exam forms to capture hazard-plus-contribution logic and escalate serious findings for same-shift correction.
☐ By year-end, review 24 months of citations and near-misses to identify repeat hazards and close them with permanent controls.
Next check-in: Spring 2026
