Okay, people. Stand by for some geeky, in-the-weeds lawyer stuff for this month’s column. I wish I didn’t have to do this to you – to be honest, I wish this wasn’t an issue at all – but there’s a major legal development afoot that anybody subject to Mine Act enforcement needs to know about. Spoiler alert: it’s a major development that – if it sticks – is virtually guaranteed to create trouble for mine operators and contractors, in terms of heightened enforcement and increased penalties. On top of that, it’s hard to see a way in which it will enhance miner safety. This is just bad news for nearly everyone who cares about the mining industry and its people.
Let me start from the beginning. As you know, §104(a) of the Mine Act says that an MSHA inspector has to write a citation if they believe that a mine operator or contractor violated the Act or a regulation implementing the Act. (From now on, I’m going to call it “the Act.”) Almost all the paper you ever get is written under §104(a) – but Congress created a graduated enforcement scheme that lets MSHA come down harder on an operator when the inspector thinks the violation creates a bigger hazard than just a plain old violation does. Under §104(d), if the inspector finds that the violation “is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety hazard,” he identifies the violation as being “S&S.” (“Significant and substantial.” Get it?)
S&S violations are more serious, and not just because they come with larger penalties. If you get an S&S violation and the inspector thinks you unwarrantably failed to comply with the Act or with a regulation, you will be cited pursuant to §104(d) and find yourself on the so-called “(d) chain.” On the (d) chain, you run the risk that some or all of your operation will be shut down completely while you sort things out. (We can talk more about the (d) chain in another column, if you want.) If your company is publicly traded in the U.S., you have to report the number of S&S violations you get each quarter to the SEC. What’s more, the number and rate of S&S violations you get are factors when MSHA considers whether to identify you as an operation that has a pattern of violations pursuant to §104(e) of the Act, and that’s really bad news. Bottom line? S&S violations are to be avoided if at all possible.
END NEARS FOR STANDARD S&S TEST
For decades, there was a four-part test to determine when a violation would be S&S. MSHA had to prove that there was (1) a violation of a mandatory regulation; (2) a discrete safety hazard that the violation contributed to; (3) a reasonable likelihood that the hazard would result in an injury; and (4) a reasonable likelihood that the injury would be reasonably serious. The last two factors were really where the rubber met the road: an injury had to be reasonably likely, and the projected injury had to be reasonably serious. MSHA considers any injury that prevents a miner from doing their job – on the citation form, an injury projected to restrict a miner’s duties or prevent them from working altogether – to be reasonably serious for S&S purposes.
We’ve been living with that analysis for years. Recently, though, MSHA has been pushing for a test that would make it easier for the agency to convince a judge that a violation was S&S. After a September 2025 decision by the Federal Mine Safety and Health Review Commission, MSHA got closer to getting its way.
CASE MARKS NEW TEST USE
In 2021, an inspector issued two S&S citations at an underground coal mine operated by the Consol Pennsylvania Coal Company. One was for a missing pin at a headgate shield on the longwall, and the other was for damaged globes housing LED lights at a continuous mining machine. (The company has good factual reasons for why the two violations didn’t actually present a hazard at all, but that’s not important for the discussion today.) When the company challenged the inspector’s findings, the administrative law judge applied the time honored four part test and upheld the S&S designations.
Consol wasn’t going to give up without a fight, however, and it asked the Commission to review the case. The Commission upheld the judge’s conclusions. What is interesting (not in a good way) is that although neither MSHA nor Consol asked the Commission to revisit the four-part analysis, the Commission did what MSHA has wanted them to do for a long time, and it abandoned the longstanding test for what makes a citation S&S. Instead, they replaced it with a new test.
Now, according to the Commission, a violation is S&S if MSHA only “demonstrate[s] that the violation to which miners are exposed could make [a significant and substantial] contribution to a mine safety or health hazard.” In other words, the violation no longer needs to be reasonably likely to lead to a reasonably serious injury or illness. Now, it’s enough if the violation “could” contribute to a safety or health hazard. This doesn’t just lower the bar for what can be called S&S. It takes away the bar altogether and relegates it to the dustbin of mine safety history. If the Commission’s ruling stands, pretty much everything will be called S&S from now on.
Thankfully, Consol isn’t finished yet. It has appealed the case to the U.S. Court of Appeals for the Third Circuit, which is based in Philadelphia. (Interesting factoid: appeals of Commission decisions can be filed either with the appeals court in Washington, D.C. or in the court where the mine is located. Consol chose the latter, most likely because it thinks that an appeals court based in Pennsylvania will have a better grasp on the real-world impact the case will have on the mining community.)
INDUSTRY COMES TOGETHER
The mining industry isn’t taking this lying down, either. To support Consol and a return to the tried-and-true four-part test, my law firm filed a friend-of-the-court amicus brief on behalf of the National Mining Association and the American Cement Association. Shout-out to the National Stone, Sand & Gravel Association and the Essential Minerals Association for filing an amicus brief as well.
I do want to say one more thing about the current way that MSHA is citing violations when it comes to S&S. We’ve heard through the grapevine, purely anecdotally, that even though it technically could cite operators under the more relaxed standard, which would make many more violations S&S, MSHA has not yet changed how it is enforcing S&S in the field. So maybe that’s some good news, even if it’s just temporary.
Make no mistake: regardless of the outcome, this case will have a huge impact on what mine safety enforcement looks like for years to come. If the Third Circuit rules against Consol, we can all expect to see many, many more violations written as S&S. The case will be ripe for decision sometime this summer or maybe in the early fall. Until then, we’ll be holding our breaths. And maybe you should, too.
Willa PerlmutterWilla Perlmutter is chair of Stoel Rives’ OSHA group and co-chair of the firm’s mining group. She can be reached at [email protected].