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. To enforce that requirement with civil penalties or other formal sanctions, the Office must promulgate a legislative rule that the Legislature has approved.

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, and an interpretive memo cannot supply civil-liability authority. Need a legislative rule.
• § 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. § 36-14-4.2: 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 State v. Folse's expressio unius reasoning, does not authorize more-frequent intervals.

The opinion states that the Office "could appropriately propose a legislative rule implementing such a requirement," referencing the legislative-rule process distinguished from interpretive rules in W. Va. Code §§ 29A-1-2(c) and (e).

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. The opinion concludes that the Office may also require pre-shift and on-shift inspections of pumps in "working places" under §§ 22A-2-14 and 22A-2-20(a), and inspection of areas not covered by pre-shift exams that workers will enter under § 22A-2-20(b). The opinion concludes the Office may not currently enforce more frequent inspections of pumps in non-working areas outside those statutory hooks.

Mining industry attorneys

The opinion's principal interpretive moves are: the binding force of statutory definitions under In re Greg H., the limits on interpretive-rule enforceability under Cookman Realty Group and Walls v. Miller, 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: Why does it matter whether a rule is "interpretive" or "legislative"?

A: It determines enforceability. § 29A-1-2(c) says interpretive rules "may not be relied upon to impose a civil or criminal sanction nor to regulate conduct." § 29A-1-2(e) says rules with "the force of law" used to impose liability must follow the legislative-rule process. A 1990 internal memorandum is interpretive at best. To make pump-inspection requirements enforceable in non-working areas, the Office needs a legislative rule.

Q: Could mine operators argue that the 1990 memo is enforceable because they have followed it for decades?

A: The opinion specifically addresses this. Cookman Realty: "the longstanding interpretations by a state agency of rules it is required to enforce ... may not be afforded any weight against a citizen." Walls v. Miller: rejected an interpretation by the Director of the Department of Mines that "emasculated" statutory requirements. Long use of an interpretive document does not convert it into a legislative rule.

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

A: Weekly, under § 22A-2-40(20). Plus on-shift if § 22A-2-20(b) applies (workers entering an area not covered by the pre-shift exam). Plus pre-shift mine exams under § 22A-2-14, which arguably could include pumps in non-working areas given the broad "mine" definition, though the AG suggests a legislative rule is needed to enforce that reading.

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 of legislative-rule promulgation. It states only that the legislative-rule process under § 29A-1-2(e) would be the appropriate vehicle to support more frequent inspections.

Background and statutory framework

West Virginia coal-mine safety is regulated under W. Va. Code Chapter 22A. 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-2-13: mine foreman/fire boss pre-shift exam of "each working place in which miners will be working."
• § 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 administrative-law backbone is W. Va. Code § 29A-1-2 plus the Beavers/Consol Energy/Appalachian Power line of cases. Beavers: agency power "is dependent upon statutes." Consol Energy: agency powers "should not be extended by implication beyond what may be necessary for [the statutes'] just and reasonable execution." Appalachian Power: "if the Legislature explicitly leaves a gap in legislation, then an agency has authority to fill the gap", but only by legislative rule when civil liability is at stake (Cookman Realty; Walls v. Miller).

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-2-13; 22A-2-14; 22A-2-20; 22A-2-40
• W. Va. Code §§ 29A-1-2(c), (e)
• W. Va. Code R. § 36-14-4.2
• 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)
• Cookman Realty Grp. v. Taylor, 211 W. Va. 407, 566 S.E.2d 294 (2002)
• Walls v. Miller, 162 W. Va. 563, 251 S.E.2d 491 (1978)
• Amedisys W. Va. v. Pers. Touch Home Care, 245 W. Va. 398, 859 S.E.2d 341 (2021)
• Jaggie v. Davis Colliery Co., 75 W. Va. 370, 84 S.E. 941 (1914)
• Crockett v. Black Wolf Coal & Coke Co., 75 W. Va. 325, 83 S.E. 987 (1914)
• Steager v. Consol Energy, 242 W. Va. 209, 832 S.E.2d 135 (2019)
• UMWA by Trumka v. Kingdon, 174 W. Va. 330, 325 S.E.2d 120 (1984)
• State v. Folse, No. 21-0972, 2023 WL 7320617 (W. Va. Nov. 7, 2023)

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