NSSGA Update - FMSHRC Issues New S&S Test

This fall, the Federal Mine Safety and Health Review Commission (FMSHRC) issued a decision that changes how the Significant and Substantial (S&S) test is applied. Below is a brief summary of the decision in Secretary of Labor v. Consol Pennsylvania Coal Co., PENN 2021-0084, the Commission’s substantive shift in the S&S standard, what it means for operators, and how National Stone, Sand & Gravel Association (NSSGA) is responding.

Case Background
The case involved two MSHA citations issued at Consol’s Bailey Mine:

• A missing keeper pin on a longwall shield that could allow a shear pin to become a projectile
• Cracked light globes on a continuous miner that could permit an ignition source in a methane-rich environment

Mine Safety and Health Administration (MSHA) designated both citations as S&S, and the Administrative Law Judge affirmed those findings. Consol appealed, challenging both the underlying violations and the application of the S&S test.
The Commission ultimately affirmed the citations and, in doing so, reexamined how the S&S standard should be interpreted under Section 104(d)(1) of the Mine Act.

Change to the S&S Test
In this decision, the Commission expressly moved away from the long-standing four-part Mathies test that had developed through case law. Under that traditional framework, MSHA was required to prove:

1. A violation of a mandatory standard
2. A discrete safety hazard
3. A reasonable likelihood that the hazard would result in injury
4. A reasonable likelihood that the injury would be serious

The Commission concluded that this multi-step test had drifted from the Mine Act’s statutory language and placed undue emphasis on probability. Going forward, the Commission states that the proper S&S inquiry is whether a violation is “of such nature as could significantly and substantially contribute to the cause and effect of a mine safety or health hazard,” consistent with the plain text of the Act.
Under this revised approach, MSHA is no longer required to separately establish the reasonable likelihood that a hazard will occur or that it will result in a serious injury. Instead, the analysis centers on whether the violation could meaningfully contribute to a hazardous condition or event.
 
Why This Matters
This decision lowers the evidentiary threshold for establishing S&S, shifts the analysis away from probability-based arguments, and is likely to result in more citations being sustained as S&S. Future determinations may focus more heavily on the nature of the violation and its potential contribution to a hazard, rather than on likelihood assessments.
Importantly, this does not mean there will be an immediate or automatic change in how MSHA issues or defends S&S citations, and there is nothing operators need to do or change at this time. MSHA did not advocate for this new test before the Commission, and the decision does not appear to align with the current administration’s overall enforcement philosophy. The change also raises several potential secondary issues that MSHA may need to address, including impacts on POV calculations and a possible increase in contested cases.
 
Appeal and NSSGA Involvement
Consol has appealed the Commission’s decision. NSSGA, together with the Essential Minerals Association, will file an amicus brief in support of Consol, specifically addressing the change to the S&S test. An amicus brief allows NSSGA to provide industry context, advocate for a particular outcome, and inform the Court of the broader implications of this decision for the aggregates industry, even though they are not a direct party to the case.