A controversy is building in the Black Hills. It began three years ago, and recently Senator John Thune asked the Department of Labor's inspector general to investigate what he calls the "inconsistent and aggressive" inspections of surface mines by the Mine Safety and Health Administration, or MSHA.
Congress passed the Mine Safety and Health Act in 1977. Its goal was to ensure the safety of miners, but Mylon Stark with the Associated General Contractors of South Dakota, said that's no longer the case.
"It's actually been a relatively good relationship for some time and over the past few years, probably the last three to four years, it has not been quite as good," Stark said.
He said MSHA has been consistently inconsistent in inspections. It's something safety director for Tri State Construction, Gregg Watson has seen first hand in Belle Fourche.
"One inspector will tell you its okay to do one things one way, the other will say no, that's not the right way, they'll fine you for it," Watson said.
Watson recently wrote a letter to Senator John Thune voicing his concerns.
"The problem is, typical Washington. They use a one-side-fits-all solution so now you've got these rock and gravel mines in Western South Dakota that have been forced to comply with these crazy requirements that really have no application to the kind of work they do." Thune said.
Thune believes the requirements are in response to last year's coal mine disaster in West Virginia.
And while 29 men died, he said coal mining is different than the gravel mining that's happening in South Dakota.
"They're trying to put strict rules from coal mining onto gravel pits, which a lot of it's senseless," Watson said.
MSHA wouldn’t let us interview any of their local inspectors but we were able to talk, by phone, with Neal Merrifield. He’s the Administrator for Metal and Nonmetal Mine Safety and Health out of their Virginia office. He said 81 percent of mining deaths are at surface mines, and that's something they're trying to change.
Merrifield also said it wasn't until three years ago that they were able to inspect every single surface min in the country.
Since then they've had the lowest number of deaths on record. But Senator Thune still said some of the citations are unwarranted.
"The nitpicky stuff. Like issuing a citation for a windshield wiper on a vehicle that isn't even being used. Some of this stuff is almost; the category of you can't make this stuff up." Thune said.
"People are getting fined for not having a portable toilet available. Which was available, but the inspector said it was inconvenient for them to drive a one-eighth of a mile to use it," Watson said.
And Watson said violations, like those, have put a heavy burden on South Dakota mines.
"The small mine, the small guy with a small mine, he's gonna throw his arms up in the air and say I can't afford to do this anymore and he's going to go out of business," Watson said.
Mylon Stark is a former OSHA compliance officer. While he believes there is nothing more important than making sure every miner is safe, he said you also have to make sure everyone is on the same page.
"There's an absolute place for coaching and education and working with the employer so we are not sustaining such an adversarial relationship and getting back to a common goal," Stark said.
Which he says is exactly why MSHA was started in the first place.
Merrifield, the MSHA representative, said they have stepped up training for inspectors to make sure that inconsistency is a thing of the past.