Can the West Virginia Office of Miners' Health, Safety & Training require coal mine operators to inspect electric water pumps located in non-working areas of the mine on a pre-shift or on-shift basis?

Plain-English summary

Underground coal mines use electric pumps to push water out, including in non-active sections. If those pumps fail, mine sections flood. If they spark, they can ignite explosive gases. Since 1990, the West Virginia Office of Miners' Health, Safety & Training has required mine operators to inspect those pumps pre-shift or on-shift via internal memorandum. Mine operators have started questioning whether the 1990 memo's pre-shift requirement for non-working sections (areas "outby the last open crosscut") is consistent with the actual statutes.

The AG's answer: the Office can require weekly inspections of all electric pumps including those in non-working areas, under § 22A-2-40(20). But the more frequent pre-shift or on-shift inspection cannot rest on existing statutes if the pump is outside a "working place" as the statute defines that term. The AG says the Office could propose a legislative rule implementing that requirement.

The reasoning runs through five statutes plus one rule:

• § 22A-2-14 (on-shift): applies only to "working places" (defined as areas "inby the last open crosscut"). Doesn't cover the non-working areas.
• § 22A-2-14 (pre-shift): applies to the "mine," which is broader than "working place" and arguably could reach pumps anywhere. But the statute does not specifically authorize pump inspections at particular times and places. The AG says a legislative rule would be needed to fill that gap.
• § 22A-2-20(a) (fire boss pre-shift): limited by terms to "active working places," so doesn't cover non-working areas.
• § 22A-2-20(b) (areas workers will enter): broader, applies to "areas of the mine" workers will enter. Could cover pumps in those areas, but again, no express text on pump inspections. Legislative rule needed.
• § 22A-2-8 (mine foreman careful watch): requires the foreman to keep "a careful watch" over pumps, but doesn't specify timing or method. The phrase is not specific enough to support pre-shift or on-shift enforcement.
• § 22A-2-40(20) (weekly all-electric): the only express pump-inspection authority. All electric equipment, including pumps, must be examined weekly. This applies regardless of location. But "weekly" doesn't permit "more frequent." Expressio unius (express mention of weekly excludes more frequent).
• W. Va. Code R. § 36-14-4: the existing legislative rule, but its terms reach only "working areas" where workers are present, so it doesn't cover non-working sections.

The opinion is a textbook lesson in West Virginia administrative law: an agency interpreting a gap in a statute is fine for guidance, but to enforce its interpretation with sanctions, it must have a legislative rule.

What this means for you

Office of Miners' Health, Safety & Training

The opinion concludes the Office may currently require weekly inspections of all pumps, including those outby the last open crosscut or in non-working sections, under W. Va. Code § 22A-2-40(20). The opinion also concludes the Office may not currently require more frequent pre-shift or on-shift examinations of pumps located outby the last open crosscut, because (i) "working place" in § 22A-1-2(c)(12) is defined as the area inby the last open crosscut, which controls § 22A-2-14's on-shift exam and § 22A-2-20(a)'s fire-boss pre-shift exam; (ii) § 22A-2-14's "mine"-wide pre-shift language, § 22A-2-20(b)'s "areas of the mine," and § 22A-2-8's "careful watch" language do not expressly authorize pump-specific timed inspections and would need legislative-rule support; and (iii) § 22A-2-40(20)'s "weekly" specification, under the expressio unius reasoning cited from State v. Folse, does not authorize more-frequent intervals.

The opinion states that the Office "could appropriately propose a legislative rule implementing such a requirement."

Coal mine operators

The opinion concludes that, under current law, the Office may require weekly inspection of all electric pumps under § 22A-2-40(20), regardless of location. It concludes that the Office cannot presently require more frequent pre-shift or on-shift pump examinations outby the last open crosscut. Section 22A-2-20(b) addresses examination of areas workers will enter, but the AG advises a legislative rule for a pump-specific requirement under that provision.

Mining industry attorneys

The opinion relies on the statutory definition of "working place" under In re Greg H., the limits of agency authority under Beavers and Consol Energy, and the State v. Folse expressio unius reading of "weekly."

State legislators overseeing mine safety

The opinion identifies that, under current statutes, no provision expressly requires pump inspections in non-working areas more frequently than weekly, and states that the Office "could appropriately propose a legislative rule implementing such a requirement." The opinion does not analyze alternative legislative options or timelines.

Common questions

Q: What is the difference between "working place" and "mine"?

A: "Working place" is defined in § 22A-1-2(c)(12) as "the area of a coal mine inby the last open crosscut", basically, the area where active mining is happening. "Mine" is defined in § 22A-1-2(6) as a much broader concept that includes shafts, slopes, drifts, inclines, ventilation systems, haulage systems, surface structures, and equipment. A pump in a non-working section is in the "mine" but not in a "working place."

Q: Could the Office adopt a rule requiring more frequent pump inspections?

A: The AG says the Office could appropriately propose a legislative rule to require more frequent pre-shift or on-shift examinations of pumps outby the last open crosscut. The opinion does not describe the rulemaking procedure.

Q: Does the Office's 1990 pump-inspection memo itself authorize more frequent inspections?

A: The AG discusses the memo but bases its answer on the statutes and existing rule. It concludes that the Office cannot presently require more frequent pump examinations outby the last open crosscut and could propose a legislative rule to implement that requirement. The opinion does not analyze whether longstanding compliance with the memo changes its effect.

Q: What inspection of non-working-area pumps is required today?

A: The Office may presently require weekly inspections of all electric pumps under § 22A-2-40(20). The AG says the broader area-examination language in § 22A-2-20(b) and the mine-wide language in § 22A-2-14 do not presently establish more frequent pump-specific inspections outby the last open crosscut; the Office could propose a legislative rule.

Q: Does the opinion address tort liability for pump failures?

A: The opinion addresses only the Office's regulatory enforcement authority. It does not analyze civil liability, workers' compensation, or common-law tort claims arising from pump failures.

Q: How long would a legislative rule take?

A: The opinion does not address timing. It says only that the Office could propose a legislative rule for more frequent inspections.

Background and statutory framework

West Virginia coal-mine safety statutes set out several examination duties. Multiple statutes set out inspection requirements that overlap and sometimes diverge. The opinion treats this layered system as deliberate: Itmann Coal Co. v. Miller says the Legislature provided "nonexclusive, multiple examinations for potential safety risks."

Definitions matter throughout:

• § 22A-1-2(6) ("mine"): includes shafts, slopes, drifts, or inclines; ventilation systems; haulage systems; "the surface structures or equipment connected or associated therewith." Pumps probably qualify as "equipment."
• § 22A-1-2(c)(12) ("working place"): "the area of a coal mine inby the last open crosscut." This is the narrow definition.
• § 22A-1-2(c)(5) ("inactive workings"): "portions of a mine in which operations have been suspended for an indefinite period, but have not been abandoned." Distinct from working places.

Inspection requirements:

• § 22A-2-14 (on-shift): certain supervisors examine "all working places under his or her supervision for hazards at least once every two hours."
• § 22A-2-14 (pre-shift): "examine each mine within three hours prior to the beginning of a shift and before any miner in such shift enters the active workings."
• § 22A-2-20(a): fire boss "examine all active working places" pre-shift.
• § 22A-2-20(b): if workers will enter areas not covered pre-shift, fire boss "examine the area for hazardous conditions" within three hours.
• § 22A-2-8: mine foreman "keep a careful watch over the ventilating apparatus, the airways, traveling ways, pumps and drainage." Specific reference to pumps but no timing requirement.
• § 22A-2-40(20): "[a]ll electric equipment shall be examined weekly, tested, and properly maintained by a qualified person to assure safe operating conditions." This is the key weekly authority.

The expressio unius point on weekly is doing important work. The Legislature said "weekly," not "at least weekly" or "no less than weekly." State v. Folse applies the canon: "the express mention of one thing implies the exclusion of another." If the Legislature wanted to authorize more frequent inspections under § 22A-2-40(20), it knew how to say so.

The opinion grounds agency authority in Beavers, Consol Energy, and Appalachian Power. Beavers says agency power "is dependent upon statutes." Consol Energy says agency powers "should not be extended by implication beyond what may be necessary for [the statutes'] just and reasonable execution." The AG concludes that the gaps in the cited inspection provisions would need a legislative rule to support more frequent pump-specific examinations.

The opinion's bottom line synthesizes all of this: weekly inspections everywhere, working-place inspections in working places, more is possible only with legislative-rule authority.

Citations

• W. Va. Code §§ 5-3-1; 22A-1-2; 22A-1-6
• W. Va. Code §§ 22A-2-8; 22A-2-14; 22A-2-20; 22A-2-40
• W. Va. Code R. § 36-14-4
• W. Va. Off. of Miners' Health, Safety & Training v. Beavers, 246 W. Va. 614, 874 S.E.2d 726 (2022)
• Pennsylvania v. Consol Energy, 233 W. Va. 409, 758 S.E.2d 762 (2014)
• Appalachian Power Co. v. State Tax Dept., 195 W. Va. 573, 466 S.E.2d 424 (1995)
• Itmann Coal Co. v. Miller, 166 W. Va. 84, 272 S.E.2d 668 (1980)
• In re Greg H., 208 W. Va. 756, 542 S.E.2d 919 (2000)
• State v. Folse

Source

• Landing page: https://ago.wv.gov/media/17486/download?inline
• Original PDF: https://ago.wv.gov/media/17486/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
(304) 558-2021
Fax (304) 558-0140

Patrick Morrisey
Attorney General

March 18, 2024

The Honorable Frank Foster
Director
West Virginia Office of Miners' Health, Safety & Training
#7 Players Club Dr., Suite 2
Charleston, WV 25311-1282

Dear Director Foster:
You have asked for an Opinion of the Attorney General concerning certain inspections of electric pumps in coal mines. We are issuing this Opinion under West Virginia Code § 5-3-1.

Your letter explains that underground coal mines use electric water pumps to remove water throughout the mine, including in non-active work sites. If these pumps malfunction, then mine sections may flood. Malfunctioning pumps can also cause sparks that then ignite explosive gases in the mine.

In a 1990 memorandum, your office implemented inspection requirements for these pumps. The memorandum requires mine operators to conduct pre-shift inspections of these pumps in "all active working places in active working sections ... and other parts of the mine where miners will be working." The same memorandum says mine operators must inspect "energized" pumps in "inactive working sections where miners will not be working ... during each shift."

Your letter raises the following legal question:
Can the Office of Miners' Health, Safety, and Training require coal mine operators to conduct pre-shift or on-shift examinations of electrically powered water pumps that are located outby the last open crosscut or in a non-working section of the coal mine?

We conclude that the Office can presently require mine operators to conduct weekly inspections of all pumps, including those located outby the last open crosscut or in a non-working section of the coal mine. Right now, however, the Office cannot require more frequent pre-shift or on-shift examinations of electrically powered water pumps that are located outby the last open crosscut. That said, we believe the Office could appropriately propose a legislative rule implementing such a requirement.

DISCUSSION

Statutes decide whether an agency like your office can act. An agency's "power is dependent upon statutes." W. Va. Off. of Miners' Health, Safety & Training v. Beavers, 246 W. Va. 614, 621, 874 S.E.2d 726, 733 (2022). Agencies have "only such [powers] as have been conferred upon them by law expressly or by implication." And "the agency's powers should not be extended by implication beyond what may be necessary for [the statutes'] just and reasonable execution." Pennsylvania v. Consol Energy, Inc., 233 W. Va. 409, 414, 758 S.E.2d 762, 767 (2014). Meanwhile, "legislative rules in West Virginia are authorized by acts of the Legislature and
[courts] have treated them ... as statutory enactments." Appalachian Power Co. v. State Tax Dept. of W. Va., 195 W. Va. 573, 584, 466 S.E.2d 424, 435 (1995).

"To promote safety in a highly dangerous business, the Legislature has provided nonexclusive, multiple examinations for potential safety risks." Itmann Coal Co. v. Miller, 166 W. Va. 84, 88, 272 S.E.2d 668, 671 (1980).

West Virginia Code § 22A-2-14

On-Shift Inspections Under Section 22A-2-14: West Virginia Code § 22A-2-14 says that certain mine supervisors must "examine all working places under his or her supervision for hazards at least once every two hours during each coal-producing shift." But "working place" is defined as solely "the area of a coal mine inby the last open crosscut." W. Va. Code § 22A-1-2(c)(12).

Considering the statutory definition of "working place," we conclude that this first part of Section 22A-2-14 does not empower the Office to require inspections outby the last open crosscut. "Where the legislature ... declare[s] what a particular term means, such definition is ordinarily binding upon the courts and excludes any meaning that is not stated." In re Greg H., 208 W. Va. 756, 760, 542 S.E.2d 919, 923 (2000).

Pre-Shift Inspections Under Section 22A-2-14: This section also provides that certain mine personnel should "examine each mine within three hours prior to the beginning of a shift and before any miner in such shift enters the active workings of the mine." Because the pre-shift inspection requirement applies to the "mine," and not just the "working place" (or the "active workings of the mine"), this part of the section arguably imposes a broader requirement. The "mine" is broadly defined to include surface structures and equipment.

But while this statute might leave a "gap" that can be filled by the agency, we conclude that the gap must be filled by a legislative rule. The existing terms of the statute do not expressly or impliedly mandate inspections at specific times and places.

West Virginia Code § 22A-2-20

Pre-Shift Inspections Under Section 22A-2-20: West Virginia Code § 22A-2-20(a) says, in relevant part, that fire bosses must "examine all active working places in [his or her] assigned area." By its terms, this pre-shift inspection requirement applies only inby the last open crosscut and in a working section of the coal mine.

On-Shift Inspections Under Section 22A-2-20: In addition, if "it becomes necessary to have workers enter areas of the mine not covered during the pre-shift examination," then the Code says the fire boss should "examine the area for hazardous conditions." W. Va. Code § 22A-2-20(b). This part of the statute applies more expansively. It refers to "areas of the mine" that workers will enter, not just "working places." But again, the lack of express text referring specifically to pump inspections suggests that your Office would be best advised to propose a legislative rule.

West Virginia Code § 22A-2-8

West Virginia Code § 22A-2-8(a) charges the mine foreman with "keep[ing] a careful watch over the ventilating apparatus, the airways, traveling ways, pumps and drainage." Although this statute is one of the few that expressly refers to pumps, it does not expressly provide for pre-shift or on-shift inspections of the pumps.

The words in the statute are broad enough that they could conceivably embrace pre-shift or on-shift requirements. But while this statute might leave a "gap" that can be filled by the agency, we again conclude that the gap must be filled by a legislative rule.

West Virginia Code § 22A-2-40(20)

West Virginia Code § 22A-2-40(20) provides that "[a]ll electric equipment shall be examined weekly, tested, and properly maintained by a qualified person to assure safe operating conditions." Pumps are electric equipment. The statute does not limit this inspection requirement to any area of the mine. So all pumps must at least be examined weekly.

This section, however, does not provide the Office authority to mandate more frequent inspections. If the Legislature wanted to require mine operators to inspect more often in this section, then we would expect to see language implying that the weekly mark was a minimum, words such as "at least" or "no less than." That language is missing here. "[I]n the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies." State v. Folse.

West Virginia Code of State Rules § 36-14-4

For several reasons, the cited regulation does not provide the Office with a basis to require pump inspections in the areas described in your letter. First, the "[p]ermissible electrical equipment" covered by the rule is meant to be "preshift examined in accordance with W. Va. Code
§ 22A-2-20." But pumps not located inby the last open crosscut and in a working section are not covered by Section 22A-2-20's pre-shift inspection requirement. Second, the regulation expects that the inspected equipment will be in a "working area ... in which miners will be working."

In sum, the Office can presently require mine operators to conduct weekly inspections of all pumps, including those located outby the last open crosscut or in a non-working section of the coal mine. The Office cannot presently require more frequent pre-shift or on-shift examinations of electrically powered water pumps that are located outby the last open crosscut. The Office would, however, have the authority to propose a legislative rule implementing such a requirement.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Frank A. Dame
Assistant Solicitor General