dissenting:
Consolidation Coal Co. (Consol) concedes that in February, 1982 it violated a respira-ble dust standard established by the Federal Mine Safety and Health Act of 1977 (Mine Act)1 and regulations of the Secretary of Labor (Secretary). As a result, Consol cannot, and does not, contest the Secretary’s authority under sections 104(a) and 110(a) of the Mine. Act2 to issue a citation to it and to assess a civil fine against it.
Rather than contesting the citation itself, Consol has objected to a finding, noted on the citation by the Mine Safety and Health Administration (MSHA) inspector, that the violation was one that “could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard” (i.e., was “significant and substantial”). That the finding was actually noted on the citation, though, is of no consequence in deciding this case. The Secretary had previously adopted an enforcement presumption that any violation of a respirable dust standard would be deemed “significant and substantial,” which, as shown below, means it could count toward a later citation based on a pattern of “significant and substantial” violations. The inspector’s “significant and substantial” finding was therefore a foregone conclusion once Consol had been cited for a respirable dust violation, and by noting this finding on the citation, the inspector simply stated what everyone already knew to be the case. Thus, this appeal stands on no different footing than it would if the inspector had omitted the notation and left Consol to deduce for itself that the Secretary presumed the violation to be “significant and substantial.”
Regardless of whether it was spelled out, however, the “significant and substantial” presumption had no impact whatsoever on Consol. It is sheer speculation for the court to suggest that, but for the designation, Consol would have been fined $20 rather than $150. Furthermore, the likelihood of the Secretary relying on this violation in the future in order to establish a “pattern” of violations is virtually nil. First, the Secretary has not yet developed guidelines for determining when a “pattern” exists under section 104(e) of the Mine Act.3 Second, five years have passed since this citation was issued, during which no “pattern” notice has been given involving this violation. It is highly improbable that, regardless of how the Secretary eventually defines a “pattern,” he would henceforth be able to rely on this violation to establish one. Given that the Secretary’s policy in this area is undeveloped, that the harm to Consol is entirely conjectural, and that adequate judicial relief from the order below would be available if it ever has any adverse effect in the future, this case fails to satisfy either the “fitness for review” or the “hardship” requirement for ripeness.4 Therefore, Consol’s petition should be dismissed, and I dissent from the court’s decision to reach the merits of this case.
*1090I. The Ripeness Requirement
Any ripeness inquiry must set forth from Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), in which the Supreme Court stated that
the ripeness doctrinéis] ... basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a two-fold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
Id. at 148-49, 87 S.Ct. at 1515 (footnote omitted). See Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Gardner v. Toilet Goods Association, Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). Although we approach ripeness questions in a “pragmatic and commonsense” manner,5 our analysis must accord with well-established principles that the court has consistently applied over the years.
Whether a claim presented to the court satisfies the prudential requirements of ripeness is a question distinct from whether an agency action is “final” for jurisdictional purposes.6 A claim is ripe if the legal issue presented is “fit” for review and the petitioner has suffered “hardship.” 7 As the passage from Abbott Laboratories quoted above indicates, the “fitness” prong of the ripeness doctrine protects the interests of the agency by preventing judicial intervention that would hin*1091der “further policy evolution. 8 Agency interests are not the exclusive concern of the “fitness” requirement, however. Requiring that an issue be “fit” for review also serves the court’s interest, by postponing review until the policy is applied in an adequately developed factual context, one that clearly reveals the contours of the policy and, therefore, its lawfulness.9
To be ripe for review, the agency action must also impose “hardship,” i.e., “the impact of the administrative action could be said to be felt immediately by those subject to it in conducting their day-to-day affairs.”10 There is sufficient “hardship” when the agency action either inflicts “immediate and significant” harm upon the petitioner11 or else confronts it with a “hard choice between compliance certain to be disadvantageous and a high probability of strong sanctions.” 12 The “hardship” requirement is not satisfied, however, when the petitioner complains of prospective but completely conjectural harm,13 and “no irremediable adverse consequences flow from requiring a later challenge” if and when the feared contingency arises.14
II. Background
Here Consol objects to the “significant and substantial” designation because, it contends, the respirable dust violation was “an episodic affair,” caused merely by the malfunctioning of a sampling device, and “an episodic affair at that level [of exposure] will not adversely affect the health of any miners.”15 As a result, it argues, this violation could not have been “significant and substantial.” From this Consol draws the conclusion that Congress did not intend a “single short-term violation”16 to trigger the Mine Act’s “most severe enforcement tools”17 — the Secretary’s withdrawal authority under sections 104(d) and 104(e) of the Mine Act.18 The Administrative Law Judge, the Commission, and now the court *1092have all addressed the question as it was framed by Consol, i.e., whether the Secretary may presume that an isolated violation of this type “could significantly and substantially contribute to the cause and effect of a ... safety or health hazard.”19
Under section 104(e), the only provision relevant to this case,20 a particular “significant and substantial” violation has no consequence in isolation21; it can operate only as one of a series of such violations to form a “pattern.” When the Secretary finds that a pattern of “significant and substantial” violations has occurred, he must so notify the operator.22 Thereafter, if the operator commits another “significant and substantial” violation, the Secretary must issue a withdrawal order.23
As far as the record indicates, the Secretary has issued no “pattern” notice involving the respirable dust violation before us. Furthermore, as the court omits to mention, the Secretary has not even developed a policy for determining in specific cases whether a “pattern” of violations exists. Instead, all that has happened to date is that the inspector designated the particular violation as “significant and substantial,” which constituted nothing more than an application of the presumption contained in the Secretary’s enforcement guidelines. Thus, although the inspector did issue a citation and assess a fine under sections 104(a) and 110(a) of the Mine Act, no enforcement action has been taken under section 104(e).
III. Fitness for Review
Given the facts that are before us, I believe that the validity of the “significant and substantial” finding is not “fit” for review. The Secretary’s policy in applying section 104(e) is not only still “evolving,” it does not even exist at the present because he has not as yet determined what constitutes a “pattern” of respirable dust violations. Furthermore, as the court acknowledges,24 Consol’s argument that Congress did not intend to authorize a withdrawal order for a one-time violation of this sort is true but it is also without significance. Congress in section 104(e) intended to authorize withdrawal orders for a “pattern” of violations, and so in order to determine whether Congress intended a section 104(e) withdrawal order in any particular circumstance — presumably a circumstance involving more than a single violation — we would have to await a finding by the Secretary that a “pattern” exists and then review that “pattern” finding. It may be that the manner in which the Secretary defines the term “pattern” will render Consol’s argument about one-time violations irrelevant, e.g., by requiring numerous violations before a “pattern” is established.25 Because Consol’s critique of the Secretary’s presumption may lose all basis when “further *1093policy evolution”26 by the Secretary yields a definition of the term “pattern,” review at this time can only lead the court into error as to the meaning of section 104(e).27
The necessity of further policy evolution to define the term “pattern” also implicates agency interests in favor of deferring review of the Secretary’s presumption. The terms “pattern” and “significant and substantial” are related in section 104(e), and our premature interpretation of the latter term raises the possibility of our constricting the Secretary’s proper discretion, see chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984),28 when he turns to interpreting the term “pattern.”29
*1094Considering the institutional interests of this court and the agency in deferring consideration of Consol’s contentions, the claims it raises are clearly not “fit” for review.
IV. Hardship to Consol
Having reviewed Consol’s section 104(e) claim to determine its “fitness” for review, the court’s analysis then takes an unexpected turn. Instead of proceeding to determine, under the second prong of the Abbott Laboratories test, whether Consol suffered “hardship” under section 104(e) as a result of the “significant and substantial” presumption, the court simply concludes that the claim is ripe, omitting entirely any analysis of hardship. It will later show why Consol has suffered no “hardship” from the Secretary’s presumption, but first I must address the court’s attempt to evade application of the Abbott Laboratories test.
A. The Need to Assess “Hardship”
In explaining its rush to judgment, the court offers the sweeping principle that:
Where, as in this case, there are no institutional interests favoring postponement of review, and in fact the agency and the court have a positive interest in immediate review, “there are no conflicting interests to balance.” Eagle-Picher [v. United States States EPA ], 759 F.2d at 918. It is enough that the petitioner show that it has suffered sufficient hardship to pass the Article III threshold. Because we have already determined that Consol has shown sufficient hardship to satisfy the constitutional requirement, it seems obvious that “[w]e need not proceed ... to the second prong of the Abbott Laboratories test.” Eagle-Picher, 759 F.2d at 918; see also Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 621 (D.C.Cir.1978).30
Although this passage suggests that the court is merely stating a principle of black-letter law, it is in fact announcing a novel proposition that is flatly inconsistent with numerous decisions of this court31 and, more important, with the landmark Supreme Court decisions in Abbott Laborato*1095ries v. Gardner32 and Toilet Goods v. Gardner,33 all of which clearly state that “fitness” alone does not render a claim ripe — the petitioner must also show “hardship,” which is more than the “injury” necessary to support standing.34 The court apparently believes that it derives some support from this court’s decisions in Midwestern Gas and Eagle-Picher, but even if this court could overrule the Supreme Court, these cases would provide little support for doing so here. Midwestern Gas did apply the principle invoked by the court, but it failed to address the obvious conflict with the Abbott Laboratories and Toilet Goods cases. Perhaps as a result, this court has not relied upon Midwestern Gas for this proposition, but has instead six times since adopted the contrary rule.35
As for Eagle-Picher, it stands for far less than the court here supposes. In fact, rather than stating that no “hardship” is necessary to make ripe a claim that is otherwise “fit,” as the court today suggests, Eagle-Picher frankly acknowledged that “[i]n some of our decisions we have suggested that the court should consider ‘the hardship to the parties,’ even where the first prong of the Abbott Laboratories testis met.”36 Eagle-Picher then recognized a narrow exception to this rule for situations in which “Congress has emphatically declared a preference for immediate review,” as it had in the statute there in question by imposing a specified time period after promulgation for judicial review of regulations:
If we were to defer review in such a case merely because we could find no significant harm to the petitioner from delay, we would achieve the perverse result of postponing review to the detriment of the agency and the court and in contravention of the express preferences of Congress, in the name of a prudential doctrine that is intended to protect the institutional needs of courts and agencies.37
When properly read, the exception found in Eagle-Picher is completely inapposite to this case, because Congress in the Mine Act has not even faintly let alone “emphatically declared a preference for immediate review.”38
The court, however, in a feat of alchemy transforms the sensible and narrow excep*1096tion announced in Eagle-Picher into a general rule that Eagle-Picher itself conceded had been rejected by this court. Two subsequent opinions of the court, written by the author of Eagle-Picher, illustrative vividly how the court here has foresaken the Abbott Laboratories requirement that a court evaluate “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” 39 This court found the claims in Better Government Ass’n v. Department of State40 and Capitol Technical Services, Inc. v. FAA41 prudentially ripe only after determining not only that they were “fit for review,” but also that the petitioners would suffer “hardship” in the absence of review. It is clear in each case, moreover, that the “hardship” relied upon by the court was in addition to that necessary for a “case or controversy.”42 If Eagle-Picher did indeed stand for the proposition that the court here suggests, then this “hardship" analysis was totally beside the point; no further inquiry would have been called for once the “fitness” determination was made.
The court’s evasion of the “hardship” requirement in this case is therefore a sport, without basis in this circuit's law. If the court had properly proceeded to address “hardship,” furthermore, it is clear that Consol's claim could not have been found to be ripe. As I will show, the two injuries that the court points to in finding that Consol has standing do not satisfy the “hardship” test.
B. The Amount of the Fine
The court asserts that the “significant and substantial” designation “increased the amount of the civil penalty assessed against Consol for this violation” from $20 to $150.43 According to the court, the designation thus resulted in $180 worth of injury, which makes this case ripe for review. If the matter were so simple, of course, we would not be in disagreement. Upon inspection, however, the claimed harm proves illusory.
The Mine Act authorizes the Secretary to propose a civil fine of up to $10,000 for a violation of a mandatory health or safety standard.44 An operator may pay the proposed fine or contest it before the Commission. If the Commission agrees that the operator has violated the Act, it assesses the amount of the fine de novo. The Commission’s discretion, within the statutory maximum, is limited under the Mine Act only by the list of factors to which Congress directed its consideration.45 Whether a violation is “significant and substantial" is not even one such factor, let alone determinative, of the amount of a fine below $10,000. Rather, that amount depends upon a variety of factors, of which the only one even arguably relevant here is “the *1097gravity of the violation.” As will be seen, however, this factor is not the same as whether a violation is “significant and substantial,” a designation that either is or is not applied by the Secretary and has consequences not for the amount of a fine but only for any latter “pattern” citation. In fact, in this case, the Secretary had recommended a fine of $140, but the Commission, for its own, unexplained reasons, decided that Consol’s violation warranted a fine of $150. Thus, from the language of the Mine Act and the facts of this case there is simply no reason to believe that the Commission would have imposed a fine less than $150 if the MSHA inspector had not memorialized the Secretary’s enforcement presumption by making the “significant and substantial” notation.
The Secretary has developed general guidelines, binding on the Commission, for determining the appropriate civil fine to propose in various circumstances. See 30 C.F.R. Part 100 (1986). Nowhere in these regulations, though, does the “significant and substantial” finding appear as a factor. Section 110.4 (30 CFR) does provide for a $20 fine “where the violation is not reasonably likely to result in a reasonably serious injury or illness, and is abated within the time set by the inspector.” As the court notes, the first part of this standard is the same as the Secretary’s criterion for identifying a “significant and substantial” violation. The court therefore concludes that if the “significant and substantial” designation in the citation was improper under the Mine Act, then under the regulations Con-sol was entitled to receive a mere $20 fine. In support of this contention, the court appears to rely exclusively on the following statement in the Secretary’s brief: “the Secretary has ... determined that violations that are serious enough to be designated significant and substantial are serious enough not to be eligible for MSHA’s $20 minimum penalty.”46
The court’s reliance is misplaced and its logic flawed, however. First, as to logic: the fact that the standard in section 110.4 (CFR), which determines eligibility for a $20 fine, and the standard in sections 104(d) and 104(e) of the Mine Act,47 which determine whether a violation is “significant and substantial,” are idem sonans does not support the conclusion that we must determine whether Congress in those statutory sections authorized the Secretary to treat the respirable dust violation of section 104(a) here as “significant and substantial.” In the Mine Act, Congress defined certain violations to be “significant and substantial”; let us designate this standard “A.” In exercising his broad discretion to propose fines up to an amount of $10,000, the Secretary in his regulations announced the proposition, in substance, that some violations are so serious that they should not receive a mere $20 fine; designate this standard “C.” The Secretary then gave meaning both to “A” and to “C” by defining them similarly as those violations that are “reasonably likely to result in a reasonably serious injury or illness”; designate this standard “B.”
According to the court, since A = B and B = C, then A = C, with the effect that under the regulations a violation should receive a $20 fine unless that violation was “significant and substantial” under the Mine Act. The difficulty with reaching this result is that A = C equates a congressional standard for withdrawal orders (standard A) with the Secretary’s standard for fines (standard C), on the basis of a bridging definition (standard B) provided by the Secretary. Whether a court’s holding that *1098the Secretary incorrectly designated a violation as “significant and substantial” would imply that no more than a $20 fine was therefore indicated for that violation depends upon the Secretary’s purpose in expressing the standard for a $20 fine in terms of whether a violation is “reasonably likely to result in a reasonably serious injury or illness.” If the Secretary intended “reasonably likely to result in a reasonably serious injury or illness” to be a proxy for “significant and substantial,” with the implication that he meant to limit his discretion in setting fines to how courts later interpreted “significant and substantial,” then the court’s conclusion that Consol was harmed in the amount of $130 is warranted. If instead, the Secretary intended to apply the “reasonably likely to result in a reasonably serious injury or illness” standard independently in two different contexts, where they have different consequences, without intending to equate the standards or to link the two issues at which they relate, then we could not properly conclude that whether a violation should receive a $20 fine depends on whether it is “significant and substantial” under the Mine Act.48 Rather, we would have to determine whether that violation was “reasonably likely to result in a reasonably serious injury or illness” as the Secretary intended that phrase in the $20 fine regulation, and this is not an argument presented by Consol.49
Second, therefore, we must address the question of the Secretary’s intent, as to which the court relies on the following statement in the Secretary's brief: “the Secretary has ... determined that violations that are serious enough to be designated significant and substantial are serious enough not to be eligible for MSHA’s *1099$20 minimum penalty.” When that passage is read in its immediate context, however, it dictates the contrary conclusion from that reached by the court, viz., that the Secretary has merely applied the same standard independently in two different contexts, with no linkage intended:
The “significant and substantial” designation ... does not, per se, have any effect on the size of the penalty that MSHA proposes for a violation. One of the factors MSHA must consider in proposing a penalty is the “gravity,” or seriousness of the violation. MSHA designates as significant and substantial those violations which rise to a certain level of seriousness, and the Secretary has also determined that violations that are serious enough to be designated significant and substantial are serious enough not to be eligible for MSHA’s $20 minimum penalty. The two policies are distinct, however. Even if it were to be judicially determined that the statutory significant and substantial finding requires a higher degree of gravity than that currently utilized, that finding would not necessarily have any effect on MSHA’s gravity evaluation for civil penalty purposes.50
In other words, whether Congress in enacting sections 104(d) and 104(e) of the Mine Act intended for a violation in the nature of Consol’s to result in a withdrawal order (i.e., whether this violation may be presumed to be “significant and substantial” —the issue that the parties wish to litigate and the court obligingly decides) does not determine whether Consol was entitled to be fined only $20. Congress in the Mine Act granted to the Secretary (and thus to the Commission which applies his regulations) virtually unreviewable discretion in proposing fines up to $10,000, and the Secretary has not bound himself or the Commission in any way to a policy that would follow the court’s interpretation of “significant and substantial” in determining whether a $20 fine is appropriate under 30 C.F.R. § 100.4.51
Therefore, any interpretation by this court of what Congress meant by “significant and substantial” in sections 104(d) and 104(e) will have utterly no effect on either the Secretary’s method of assessing fines or, more importantly, on Consol’s fine for the violation.52 Consol therefore cannot rely on the $150 fine to make the necessary ripeness showing that it suffered concrete “hardship” as a result of the “significant and substantial” designation and the Secretary’s enforcement presumption.53
*1100C. The “Pattern” Issue
It is also clear, and the court does not argue otherwise, that Consol suffered no “hardship” under section 104(e) as a result of the Secretary’s presumption that the respirable dust violation for which it was cited was “significant and substantial.” 54 It is of course undisputed that Consol suffered no immediate penalty under section 104(e).55 Nor did the presumption confront Consol with a “hard choice between compliance certain to be disadvantageous and a high probability of strong sanctions.”56 The presumption itself posed no “hard choice” because (1) the violation, which Consol concedes occurred, was already unlawful and punishable by a fine under sections 104(a) and 110(a) of the Mine Act, without regard to the presumption; and (2) when an operator violates a respirable dust standard, sections 104(b), 104(f), and 110(b)57 of the Mine Act automatically confront it with the choice between either abating the violation or suffering a withdrawal order and increased fines. The “significant and substantial” presumption, therefore, merely enables the Secretary to use the withdrawal remedy under section 104(e) in those situations where the fine and withdrawal order penalties under sections 104(a), 104(b), 104(f), 110(a), and 110(b) have failed to prod the operator into *1101compliance, and that is far from this case.58 We consequently do not address a situation in which the disputed agency action (here the “significant and substantial” presumption) affected Consol’s “primary conduct”59 either by deterring it from engaging in profitable activity or by compelling it to undertake costly compliance measures.60
Furthermore, even though a single “significant and substantial” violation is “an important first step in a chain of events” leading to enforcement under section 104(e), any number of contingencies “may interrupt the chain.”61 Consol will be harmed as a result of the Secretary’s presumption that this violation was “significant and substantial” if and only if (1) Consol commits further “significant and substantial” violations for which it is cited, (2) the Secretary then makes a finding that the series of violations constitutes a “pattern” within the meaning of section 104(e), and (3) after being notified that a “pattern” exists, Consol commits still another “significant and substantial” violation. Only after all these events transpire will the Secretary order withdrawal. The likelihood that the particular violation in this case, which occurred over five years ago, will ever form part of a “pattern” finding is therefore virtually nil, and would certainly be far too hypothetical to justify judicial review even if the issue were not otherwise unfit for such review.62
Finally, whatever hypothetical harm may come to pass can be fully averted by review when and if the Secretary issues a “pattern” notice or a withdrawal order.63 In this respect, the instant case differs not at all from previous decisions by this court in which we have postponed to a more appropriate time review of concededly “final agency action” that imposed no present hardship.64 Given the availability of adequate relief at a later time, when the issue is presented in the context of an actual “pattern” finding to which the Secretary has applied a stated policy for implementing section 104(e), this issue is clearly not ripe for review now.65
V. Conclusion
This rationale offered by this court (per Scalia, J.) for dismissing another recent case as unripe applies equally well, indeed perfectly, to the instant case. I cannot improve upon it, so I will simply restate it:
[The ripeness doctrine] protects] us from adjudicating matters that are not sufficiently “fleshed out” that we may see the concrete effects and implications of what we do ... [and it] protects] us from adjudicating matters that in fact *1102make no difference and are a waste of our resources.... [T]he prematurity [in this case] is such that — whether or not constitutional limits are exceeded, and whether or not the agency objects — our own ability to decide intelligently, and our own confidence that we are expending resources in resolving a dispute that has substance, are proximately affected.... In these circumstances, we would be foolhardy to proceed, even absent objection, in a case that does not meet the Abbott Laboratories standard.66
The issue in the case before us is not “fit for review” and Consol has suffered no “hardship.” Because “[n]o roving preview function has been assigned to courts in the federal system,”67 this petition should have been dismissed. I therefore dissent.
. The Mine Act is comprised of the Federal Coal Mine Health and Safety Act of 1969, Pub.L. 91-173, as amended by the Federal Mine Safety and Health Amendments Act of 1977, Pub.L. 95-164. The Mine Act is codified at 30 U.S.C. § 801 et seq. (1982).
. 30 U.S.C. §§ 814(a), 820(a) (1982).
.The line dividing the prudential requirement of ripeness from the constitutional requirement of standing is "difficult to discern and unnecessary to identify.” Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 n. 12 (D.C.Cir.1986). It is clear, however, that a case may be unripe even when the petitioner has standing. See id at 939-40. Because this case should be dismissed on ripeness grounds, I do not address whether Consol has standing to object to the Secretary’s enforcement presumption.
. Eagle-Picher Indus. v. United States EPA, 759 F.2d 905, 918-19 (D.C.Cir.1985).
. See Toilet Goods v. Gardner, 387 U.S. at 162-64, 87 S.Ct. at 1523-24; State Farm Mut. Auto Ins. Co. v. Dole, 802 F.2d 474, 479 (D.C.Cir.1986), cert. denied sub nom. New York v. Dole, — U.S. -, 107 S.Ct. 1616, 94 L.Ed.2d 808 (1987); Alascom, Inc. v. FCC, 727 F.2d 1212, 1217 (D.C.Cir.1984); Air New Zealand Ltd. v. CAB, 726 F.2d 832, 836-37 (D.C.Cir.1984); Midwestern Gas Transmission Co. v. FERC, 589 F.2d 603, 620 (D.C.Cir.1978). Thus, even though a court may have jurisdiction to review an agency action because that action is "final,” the court may defer review of some or all of a petitioner’s claims if prudential concerns counsel postponing review until a later date. When confronted with a broad-based attack on an agency action, this court therefore conducts a claim-by-claim analysis of ripeness. See State Farm Mut. Auto Ins. Co. v. Dole, 802 F.2d at 480-85; Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 940-42.
. Contrary to the court’s assertion, maj. op. at 1081 satisfying the "fitness” standard alone does not make a case ripe for review; "hardship” must also be shown, in addition to the injury necessary for standing. See Abbott Laboratories v. Gardner, 387 U.S. at 149, 87 S.Ct. at 1515; Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524; American Fed'n of Gov’t Employees v. FLRA, 750 F.2d 143, 144 (D.C.Cir.1984); American Trucking Ass'n, Inc. v. ICC, 747 F.2d 787, 790 (D.C.Cir.1984); Alascom, Inc. v. FCC, 727 F.2d at 1217; Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747, 749 (D.C.Cir.1984); Air New Zealand Ltd. v. CAB, 726 F.2d at 838; Baltimore Gas & Elec. Co. v. ICC, 672 F.2d 146, 149 (D.C.Cir.1982). As I show below, infra at 1095-96, the court’s error results from its misreading of Eagle-Picher v. United States EPA, supra note 5.
The court notes correctly, however, maj. op. at 1081, that some of this court’s opinions have broadly suggested that sufficient hardship may "outweigh any institutional interests in the deferral of review.” Better Government Ass’n v. Department of State, 780 F.2d 86, 92 (D.C.Cir.1986). See State Farm Mut. Auto Ins. Co. v. Dole, 802 F.2d at 479-80; Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 940; Eagle-Picher Indus. v. United States EPA, 759 F.2d at 915 & n. 15; Public Citizen Health Research Group v. Com’r FDA, 740 F.2d 21, 31 (D.C.Cir.1984); Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 618; Diamond Shamrock Corp. v. Costle, 580 F.2d 670, 672 (D.C.Cir.1978); New York Stock Exchange v. Bloom, 562 F.2d 736, 740-41 (D.C.Cir.1976), cert. denied sub nom. New York Stock Exchange v. Heimann, 435 U.S. 942, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978); Continental Air Lines, Inc. v. CAB, 522 F.2d 107, 124-25 (D.C.Cir.1974) (en banc). This assertion, which has always been dicta, seems highly problematic; first, it is unlikely that the legal issues will be unfit for review when significant hardship has been imposed (I am aware of no such instance); and second, if a case is truly unfit for review, then review is improper, as a matter of law, notwithstanding the hardship imposed. Cf. Papago Tribal Utility Authority v. FERC, 628 F.2d 235, 243 (D.C.Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980).
. See Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524 ("judicial appraisal of [an issue] is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of [a] generalized challenge’’); Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 941-42; Reynolds Metal Co. v. FERC, 777 F.2d 760, 762 (D.C.Cir.1985); American Trucking Ass’n, Inc. v. ICC, 747 F.2d at 789-90; South Carolina Electric & Gas Co. v. ICC, 734 F.2d. 1541, 1546 (D.C.Cir.1984); Air New Zealand Ltd. v. CAB, 726 F.2d at 837; Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 620; Diamond Shamrock Corp. v. Costle, 580 F.2d at 674.
. Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524.
. Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 940-41. In addition to Action Alliance, such harm has been found recently in Capitol Technical Services, Inc. v. FAA, 791 F.2d at 969, and Better Government Association v. Department of State, 780 F.2d at 94.
. Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 751; See Abbott Laboratories v. Gardner, 387 U.S. at 153, 87 S.Ct. at 1517; Gardner v. Toilet Goods, 387 U.S. at 171-74, 87 S.Ct. at 1528-30; Ciba-Geigy Corp. v. United States EPA, 801 F.2d 430, 439 n. 10 (D.C.Cir.1986); Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 725-26 (D.C.Cir.1984); Webb v. Department of Health & Human Services, 696 F.2d 101, 107-08 (D.C.Cir.1982).
. See National Latino Media Coalition v. FCC, 816 F.2d 785, 790 (D.C.Cir.1987); State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d at 480-82; Hastings v. Judicial Conference of United States, 770 F.2d 1093, 1100-02 (D.C.Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 3272, 91 L.Ed.2d 562 (1986); Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 749-50; Alascom, Inc. v. FCC, 727 F.2d at 1220; Air New Zealand Ltd. v. CAB, 726 F.2d at 837-38; Arkansas Power & Light Co. v. ICC, 725 F.2d at 725-26; Baltimore Gas & Elec. Co. v. ICC, 672 F.2d at 148-49; Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 623-24.
. Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524. See National Latino Media Coalition v. FCC, 816 F.2d at 790; State Farm Mut. Auto Ins. Co. v. Dole, 802 F.2d at 481; Hastings v. Judicial Conference of United States, 770 F.2d at 1100-02; Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 751; Alascom, Inc. v. FCC, 727 F.2d at 1220.
. Brief of Consolidation Coal Company at 33 (emphasis in original).
. Reply Brief of Consolidation Coal Company and the American Mining Congress at 2.
. Brief of Consolidation Coal Company at 10.
. 30 U.S.C. § 814(d), (e).
. See maj. op. at 1075-77, 1084-86, 1087.
. Section 104(d) comes into play only when a "significant and substantial" violation has been "caused by an unwarrantable failure of [the] operator to comply with [a] mandatory safety or health standard [ ]”; since the inspector did not allege an "unwarrantable failure” in this case, section 104(d) is not, even in futuro, implicated here.
. The court acknowledges this point: "[T]he fact that a particular violation has been designated as significant and substantial, without more, does not result in the imposition of any additional sanction under the Mine Act....” Maj. op. at 1084.
. Mine Act § 104(e)(1), 30 U.S.C. 814(e)(1).
. Id.
. See maj. op. at 1084.
. Cf. Action Alliance of Senior Citizens v. Heckler, 789 F.2d at 941 (“To hold the [agency’s] provision invalid on its face, a court would have to conclude that the provision stands in conflict with the statute regardless of how the agency exercises its discretion. Before so ruling, a court would be obliged to perceive and consider the various ways in which the agency might use its discretion.”); Papago Tribal Utility Authority v. FERC, 628 F.2d at 240 ("Perhaps the Commission will resolve the claims of the parties and obviate any injury to them if we allow it to complete its proceedings. Thus we would be 'deciding] hypothetical questions and wast[ing] appellate resources by intervening at this stage.’ Green v. Dep’t. of Commerce, 618 F.2d 836, 839 (D.C.Cir.1980).’’).
. Capitol Technical Services, Inc. v. FAA, 791 F.2d at 969.
. Cf. cases cited in note 9, supra. The court contends that it "has an interest in considering Consol’s challenge now” because ”[b]y the time a 'pattern' notice is finally issued, the facts supporting the underlying violations will have grown stale. To attempt at that point to review what might be hundreds of prior findings that individual violations were significant and substantial, many of which might have been made years earlier, would be an impossible task.” Maj. op. at 1080 (footnote omitted).
The court here simply piles one unsupportable assertion upon another. First, the court assumes that in a pattern case our review of the Secretary’s presumption that any respirable dust violation is "significant and substantial” would require us to engage in individualized factual review of each prior finding. Given the presumptive nature of the Secretary’s enforcement policy, however, such individualized review would not be necessary. In deciding whether the presumption violates the Mine Act, the individual facts of each such violation would be irrelevant to our analysis because the Secretary disavows any reliance upon them. We therefore need to address this issue only once, either now or when properly presented in a section 104(e) case, and that one resolution will apply to all the violations that the Secretary claims, in a later case, constitute a pattern. Cf. American Trucking Ass’n, Inc. v. ICC, 747 F.2d at 790.
Second, once we upheld the Secretary’s enforcement presumption, the only relevant question of fact would be whether respirable dust violations did occur as alleged by the Secretary. Because an operator may immediately contest whether a respirable dust standard has been violated (as Consol chose not to do in this case), all the relevant factual questions will have been litigated when the violation was first charged. If review of a subsequent "pattern” finding ever became necessary, the fact that a violation of a respirable dust standard occurred at a particular place and time will be a matter of official record; the proof will therefore be documentary. (The court attempts to rely on Consol’s contention concerning the accuracy of the samples to show that individualized factual review will be necessary. This argument amounts to no more than (1) the testing device is too unreliable to support the Secretary’s presumptive reliance on its results, or (2) the device malfunctioned in this case, and thus the dust standard was not in fact violated. The former contention depends not on the particulars of any one violation, but on the general accuracy of the device, and the latter contention, as I have stated, may be litigated at the time of the citation. Here, Consol has conceded that the standard was violated.)
. In the instant case, the court does not clearly indicate whether it is reviewing the Secretary’s interpretation of the Mine Act, or that of the Federal Mine Safety and Health Review Commission. We have elsewhere held, though, that Chevron deference, which is clearly required in this case, is to be accorded the Secretary’s interpretation. See Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537 (D.C.Cir.1986); Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1552 (D.C.Cir.1984).
. See Cities of Anaheim & Riverside, Cal. v. FERC, 692 F.2d 773, 779-80 (D.C.Cir.1982) ("Review by the court now would invade the province of the administrative agency.”). Cf. Southern R. Co. v. Seaboard Allied Milling Co., 442 U.S. 444, 460, 99 S.Ct. 2388, 2397, 60 L.Ed.2d 1017 (1979); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 670, 83 S.Ct. 984, 990, 10 L.Ed.2d 52 (1963); Papago Tribal Utility Authority v. FERC, 628 F.2d at 239-40 ("[T]he re-viewability of an order must therefore be determined by ... whether judicial review at this stage of the administrative process would invade the province reserved to the discretion of the agency.... [A]t this stage we would be acting ... without the benefit of the Commission's views on relevant questions of law and regulatory policy.").
The court therefore errs when it states that ”[t]he Commission’s policy with respect to the designation of respirable dust violations as significant and substantial has been fully developed in final form and unconditionally applied to Consol, so that our review poses no danger of interrupting the agency’s decisionmaking process.” Maj. op. at 1080. The term "significant and substantial” cannot be interpreted outside of its statutory context, in this case section 104(e). (This is particularly so given Consol’s contention that Congress did not intend to authorize withdrawal orders under sections 104(d) and 104(e) for the violation before us, and that we should therefore conclude that this violation cannot be “significant and substantial.”) Until *1094the Secretary defines the critical term in that provision — viz,, “pattern" — our review of his interpretation of "significant and substantial” poses a clear "danger of interrupting the agency's decisionmaking process” with regard to interpreting section 104(e).
In. arguing that this case is fit for review, the court also contends that:
it appears that postponing review would be detrimental to the agency, leaving it uncertain as to its ability to impose the more serious sanctions available under §§ 104(d) and (e), which depends on initial findings that a violation is significant and substantial.
Maj. op. at 1080 (footnote omitted). The court offers no basis in fact for this assertion; there has been no representation by the Secretary that he has been inhibited, for example, from applying section 104(e), although five years have passed since the time of this citation and any evidence of such an inhibiting effect should have become obvious by now. Nor would one expect that the Secretary would be inhibited since, under Chevron, this court must uphold any "permissible construction” of the Mine Act that he chooses to adopt. 467 U.S. at 843, 104 S.Ct. at 2782.
For the same reason, I consider highly suspect the court's argument that ripeness analysis should be influenced by the belief that "postponing review would be detrimental to the agency, leaving it uncertain as to” the meaning of a statute. Under Chevron, the agency is the primary interpreter of the statute, and we must uphold any “permissible construction” thereof that it offers. Id. The centrality of the agency’s interpretive role under Chevron only enhances the force with which the ripeness doctrine should be understood to counsel the court against interrupting the evolution of agency policy. See cases cited in note 8, supra. In this case, the Secretary has not yet interpreted the term "pattern” in section 104(e) and, as I have argued, we cannot properly review the Secretary’s interpretation of "significant and substantial” in isolation from the term “pattern.” The court therefore turns ripeness analysis on its head when it contends that the undeveloped status of the Secretary’s section 104(e) policy is a reason why it should now reach Consol’s claim.
. Maj. op. at 1081-82 (footnotes omitted).
. See American Fed’n of Gov’t Employees v. FLRA, 750 F.2d at 144; American Trucking Ass’n, Inc. v. ICC, 747 F.2d at 790; Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 749; Alascom, Inc. v. FCC, 727 F.2d at 1217; Air New Zealand Ltd. v. CAB, 726 F.2d at 838; Baltimore Gas & Elec. Co. v. ICC, 672 F.2d at 149.
. See 387 U.S. at 149, 87 S.Ct. at 1515 ("The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court decision.”), 153, 87 S.Ct. at 1518 ("Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts ... must be permit-ted_”) (emphases added).
. See 387 U.S. at 164, 87 S.Ct. at 1524: “We are also led to this result by considerations of the effect on the petitioners of the regulation, for the test of ripeness, as we have noted, depends not only on how adequately a court can deal with the legal issue presented, but also on the degree and nature of the regulation’s present effect on those seeking relief."
. For an Article III "case or controversy” to exist, "[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The requisite injury here need only be "distinct and palpable." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). The ripeness test of "hardship" imposes the additional requirements that the injury be "immediate and significant” and that subsequent proceedings cannot remedy it. Supra at 1091-1092.
. See cases cited in note 31, supra.
. Eagle-Picher, 759 F.2d at 918 & n. 70 (citing three of the cases in note 31, supra).
. Id. at 918.
. The court’s error results from its misreading the narrow exception in Eagle-Picher as arising from Congress’ "institutional interest” in immediate review. Instead, Eagle-Picher stated only that courts should not, on prudential grounds relating to "hardship," defer review "in contravention of the express preference of Congress.” Eagle-Picher, 759 F.2d at 918. I agree. See Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 82, 98 S.Ct. 2620, 2635, 57 L.Ed.2d 595 (1978). Contrary to the court’s suggestion here, see maj. op. at 1082 n. 12, Eagle-Picher never contended that Congress had any unexpressed "institutional interest" in accelerating review, and I cannot imagine what that interest would be.
. 387 U.S. at 149, 87 S.Ct. at 1515 (emphasis added).
. 780 F.2d 86 (1986).
. 791 F.2d 964 (1986).
. In fact, before the court began its ripeness analysis in Better Government Ass’n, it had assumed that Article Ill’s "case or controversy” requirement was satisfied. See 780 F.2d at 92 n. 25. I therefore fail to understand how the court here can deny that ripeness in its prudential form represents a "super-standing” requirement. Maj. op. at 1082. If ripeness does not require more than is required merely for constitutional standing, as the court contends in effect, then the doctrine has no content.
. Maj. op. at 1078.
. See section 110(a) of the Mine Act, 30 U.S.C. § 820(a).
.See section 110(i) of the Mine Act:
The Commission shall have authority to assess all civil penalties provided in this chapter. In assessing civil monetary penalties, the Commission shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation. In proposing civil penalties under this chapter, the Secretary may rely upon a summary review of the information available to him and shall not be required to make findings of fact concerning the above factors.
30 U.S.C. § 820(i).
. See maj. op. at 1078-79, quoting Brief of the Secretary of Labor at 32 n. 16. The court goes on to state that "MSHA apparently routinely applies the $20 penalty to violations that are not designated as significant and substantial,” id. at 1079 (emphases added), but the court provides no real support for this finding in the record before us. Instead, the court relies on a statement by Consol’s counsel at oral argument. Id. Why Consol should be authoritative or even knowledgeable about the Secretary's enforcement practices is not altogether obvious, particularly given Consol’s claim to have a record of exemplary compliance with the respirable dust standards. See Brief of Consolidation Coal Company at 33 n. 10; infra note 60. In any event, the Secretary made no such representation, even at oral argument.
. 30 U.S.C. §§ 814(d), 814(e).
. The court infers from a representation at oral argument (see maj. op. at 1079) that there is a 1:1 correlation between "significant and substantial” designations and fines of more than $20. From this, the court concludes that a ruling that the Secretary’s enforcement presumption for "significant and substantial” is invalid under the Mine Act would in turn compel the conclusion that the proper fine for this violation was $20.
In so arguing, the court confuses correlation with causality, just as does the person who, noticing that fires are more severe when more firemen are present, deduces that the way to diminish fire damage is to have fewer firemen. In our case, instead of there being a causal relationship between "significant and substantial” designations and fines of more than $20, any 1:1 correlation (assuming that it does exist) appears to result from the Secretary’s determining first whether a violation is "reasonably likely” etc., and from a positive answer reaching two separate conclusions: (1) to assess more than a $20 fine for that violation and, (2) if a "pattern” of similar violations develops, to treat such violations as "significant and substantial” for the purpose of deciding when a withdrawal order is necessary under section 104(e) of the Mine Act.
If this accurately explains the correlation (and I conclude that it does, see text infra), this appeal is not ripe for review, because the complained-of harm (viz. the fine above $20) will not be redressed by this court ruling that the Secretary violates the Mine Act when he presumes that all respirable dust violations are "significant and substantial." Simply put, such a ruling would have no bearing on the Secretary’s separate conclusion that violations that are "reasonable likely” etc. should be fined more than $20. Consequently, in Consol’s case, the only relief that would follow from such a ruling would be that this non — "significant and substantial" violation could not later form part of a "pattern" of such violations under section 104(e). The $150 fine, however, would be unaffected. Because the relief sought by Consol will not redress the fine, Consol may not rely upon that fine to show that the propriety of the Secretary’s enforcement presumption is an issue now ripe for review, nor even, as the court would, that Consol has standing to object to the presumption. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976).
. The $150 fine would clearly have rendered ripe for review the propriety of the "significant and substantial” finding if Consol had argued that this violation was not "significant and substantial" on the ground that the Secretary in this instance misapplied his "reasonably likely to result in a reasonably serious injury or illness” standard for what constitutes a "significant and substantial” violation (i.e., that the Secretary’s determination that this violation was "reasonably likely” etc. was unsupported by the facts). Since the Secretary's regulations state that a $20 fine is appropriate except when a violation is "reasonably likely” etc., a judicial determination that the violation was not "reasonably likely" etc. would therefore result not only in the voiding of the "significant and substantial" finding, but also in reducing the fine to $20. In the actual case before us, however, Consol does not contend that the Secretary misapplied his own “reasonably likely" standard to the facts.
. Brief of the Secretary of Labor at 32 n. 16 (emphases added).
. This conclusion as to the Secretary’s intent is buttressed by the fact that, if the Secretary had wanted to bind himself and the Commission in such a way, he could have easily done so by providing in the regulations that fines above $20 shall be assessed for "significant and substantial” violations, omitting altogether the "reasonably likely to result in a reasonably serious injury or illness” standard.
. The court’s reliance on the effect this violation will purportedly have on Consol’s recorded compliance history, see maj. op. at 1079, is also unfounded, since recordation of the violation was simply a corollary of having to pay a fine of above $20.
. The court has not argued, let alone shown, that in the absence of the "significant and substantial” finding Consol’s fine, even if greater than $20, would still have been less than $150. Under the regulations, if the violation does not qualify for the $20 fine, the Secretary generally calculates the amount of the fine using an elaborate formula for quantifying the seriousness of the violation in terms of the sub-section 110(i) factors. See 30 C.F.R. § 100.3. The “gravity" of the violation involves
an evaluation of the seriousness of the violation as measured by the likelihood of the occurrence of the event against which a standard is directed, the severity of the illness or injury if the event occurred or were to occur, and the number of persons potentially affected if the event occurred or were to occur.
Id. § 100.3(e). The regulation establishes "likelihood" and "severity" point values, none of which involves whether the violation is "significant and substantial" or even whether the violation is "reasonably likely to result in a reasonably serious injury or illness.”
In certain exceptional situations, the Secretary assesses fines under an alternative provision. Under 30 C.F.R. § 100.5, the Secretary may impose a “special assessment” for "some types of violations [that] may be of such a nature or seriousness that it is not possible to determine an appropriate penalty under” subsection 100.4 or subsection 100.3. None of the eight listed categories qualifying for a “special assessment,” however, involves a determination of whether a violation is either "significant and *1100substantial" or "reasonably likely to result in a reasonably serious injury or illness."
. Because, as I have shown, supra note 34, the injury required for standing is less than that needed for "hardship," the court's reliance on Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1006 (D.C.Cir.1976), which involves standing, is inapposite for ripeness analysis. See maj. op. at 1078, 1079.
. The court states that the "typical case” of an unripe claim "involve[s] pre-enforcement challenges to agency action," and then distinguishes “[t]his case [which] does not involve a pre-en-forcement challenge." Maj. op. at 1081 & n. 10. The court does not appear to rely on this distinction in any way, however. Although Eagle-Picker v. United States EPA also assumes that the Abbott Laboratories ripeness test is limited to "pre-enforcement" challenges, 759 F.2d at 915-16, it is abundantly clear that, pre-enforcement or not, Abbott Laboratories replaced the "tangle of special rules and legalistic distinctions" that had previously governed ripeness determinations with a "practical common sense" test (of "fitness” and "hardship") applicable to all agency actions. Continental Air Lines, Inc. v. CAB, 522 F.2d at 124 (footnote omitted). See State Farm Mut. Auto Ins. Co. v. Dole, 802 F.2d at 479; Air New Zealand Ltd. v. CAB, 726 F.2d at 836-37.
Even though the "pre-enforcement" distinction does not play any part in the court’s analysis, I note that the contention that Consol’s appeal "does not involve a pre-enforcement challenge" is simply wrong, and results from the court’s failure to distinguish between enforcement under section 104(a) (issuance of citation) and under section 104(e) (issuance of "pattern" finding and subsequent withdrawal order). In this case, there was enforcement under section 104(a) when the Secretary issued a citation to Consol for violation of a respirable dust standard. Consol could seek immediate review of that citation on the ground that the violation did not occur, but that section 104(a) enforcement is irrelevant with respect to Consol's challenge to the "significant and substantial" designation placed on the citation by the MSHA inspector.
For the court's distinction to be of any moment there would have to be enforcement under section 104(e). The designation, however, does not constitute "enforcement." As I have shown, the designation did not cause the fine to be increased, and the violation has not yet formed part of a "pattern” under section 104(e). Furthermore, as I have stated above, supra at 1089, the designation was a foregone conclusion given the Secretary's presumption that any respirable dust violation is "significant and substantial.” Consequently, if the Secretary’s presumption were "squarely applied to Consol" as the court believes, maj. op. at 1077, then it would have "squarely applied” regardless of whether the inspector omitted the notation, because whether a violation may later form part of a "pattern" under section 104(e) does not depend upon whether the citation states that the violation is "significant and substantial.” The Secretary’s presumption was therefore "applied" in this case to the same extent as were the unripe preliminary determinations in the cases cited infra note 64, which the court vainly attempts to distinguish. See maj. op. at 1082 n. 13.
As a matter of common sense, Consol’s appeal involves not the specific violation before us, but merely the Secretary’s presumptive interpretation of the statutory phrase "significant and substantial." To review the presumption at this stage, when no "pattern” finding has been made, is no different than reviewing it immediately upon its initial announcement by the Secretary. Since this would be comparable to the situation in the Abbott Laboratories trilogy, where petitioners sought review of regulations prior to their enforcement, Consol’s appeal is as much "pre-enforcement” as were those appeals.
. Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 751.
. 30 U.S.C. §§ 814(b), 814(f), 820(b).
. The Secretary’s presumption therefore has a very different effect upon operators than had the labeling requirements imposed upon the petitioners in Abbott Laboratories. The labeling rulemaking established new norms of conduct, thereby subjecting previously lawful behavior to sanctions. In contrast, the Secretary’s presumption here established no new norm of conduct, but would in a later case merely permit the Secretary to enforce preexisting norms by means of the section 104(e) withdrawal penalty, in addition to the withdrawal and fine penalties available elsewhere in the Mine Act.
. Toilet Goods v. Gardner, 387 U.S. at 164, 87 S.Ct. at 1524.
. In fact. Consol argues that the violation was not "significant and substantial” because it was a one-time violation, Consol having scrupulously complied with this mandatory standard both before and after the one violation. Brief of Consolidation Coal Company at 33 n. 10. The citation and the "significant and substantial” presumption did not prompt Consol to alter its behavior in any manner other than to "babysit” the sampling device (in order to abate the violation) and to bring this litigation. See maj. op. at 1075.
. Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 623.
. Cf. cases cited in note 13, supra.
. The court does not resolve today the question of whether the "pattern” notice would be a reviewable final order or an operator must wait for judicial review until such later time as the Secretary actually orders withdrawal.
. See e.g., Northern Natural Gas Co. v. FERC, 780 F.2d 59, 63, reh. granted and opinion vacated in other part, 780 F.2d 64 (D.C.Cir.1985); Air New Zealand Ltd. v. CAB, 726 F.2d at 838; Midwestern Gas Transmission Co. v. FERC, 589 F.2d at 622-25.
. Cf. Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 749-51; Baltimore Gas & Elec. Co. v. ICC, 672 F.2d at 149.
. American Trucking Ass’n, Inc. v. ICC, 747 F.2d at 789-90.
. Tennessee Gas Pipeline Co. v. FERC, 736 F.2d at 751.