Operators of sand and gravel pits and stone quarries, which make up the bulk of mines in this country, are well aware of the Mine Safety and Health Administration's (MSHA) regular surprise inspections and investigations. Complete MSHA inspections of every mine are required twice a year. In addition, MSHA may show up unannounced at any time to conduct a spot inspection or hazard complaint inspection.

Mine operators as a whole have proven conscientious and vigilant with respect to trying to prevent violations. They diligently follow their own employee training and pre-shift and on-shift safety inspections as required by law. Nevertheless, there is hardly an MSHA inspection where no violations are issued.

Violations result in civil penalties, which are escalating rapidly since the advent of MSHA's new civil penalty regulations last year. A greater volume of citations issued to an operator translates to higher penalties – often drastically higher. They raise the specter of repeated closures under "Pattern of Violations" enforcement by MSHA. This could be devastating to the business.

The most serious enforcement consequences often arise out of what may follow an MSHA inspection – especially if charges are made that the company was guilty of unwarrantable failure. Unfortunately, such findings are not that uncommon. After any such elevated enforcement, MSHA may send out a special investigator. Through interviews of witnesses and requests for company documents, this investigator seeks to collect evidence that could prove that the violation was knowingly authorized or willfully committed – very serious charges.

MSHA also can bring a civil prosecution against any agent of a corporation who is alleged to have "knowingly authorized, ordered or carried out a violation." Of course, investigations are always of great concern to mine operators, managers and supervisors, and obviously they should be. They also make it necessary for the company to seek expert assistance because they are far more than an inspection.

Investigations of MSHA

Enforcement agencies such as MSHA are also subject to investigation. Typically, investigations of MSHA relate to whether the agency is doing its job properly and with sufficient care and oversight. MSHA is held to a high standard – something that is always of concern to agency officials. Right now, it seems, MSHA officials have more reason than ever to be concerned.

?Within the Department of Labor, the inspector general conducts investigations of agencies such as MSHA. MSHA has been feeling the heat of such oversight, particularly after the Sago coal mine accident in January 2006 and other serious and highly publicized accidents – most recently last year's Crandall Canyon collapse in August. It is not just internal investigation that MSHA has to worry about. There are external investigations done by the Office of Management and Budget.

And there are congressional and Senate committee investigations.

When Congress passed the Federal Mine Safety and Health Act of 1977, MSHA was not just created and turned loose. MSHA makes regular reports to Congress. MSHA can be pulled in for investigatory hearings at anytime. This has been happening a lot since Sago. And the Crandall Canyon disaster has resulted in scrutiny of what MSHA did and did not do in enforcing the law.

No investigation has ever resulted in findings that MSHA is too strict or too demanding. There is never a finding that MSHA issued too many citations or closure orders. Rather, the finding that is made – the finding that MSHA fears – is that it did not enforce the law fully, that it let the operator get away with violations.

Michael T. Heenan is an attorney for one of the nation's largest labor and safety law firms. Contact him at Ogletree, Deakins, Nash, Smoak & Stewart, 2400 N. Street, Fifth Floor, Washington, DC 20037. E-mail: michael.heenan@odnss.com