Does West Virginia's daily mine-inspection requirement apply to a coal mine that has stopped producing coal and where the operator is dismantling and removing surface equipment but has not yet surrendered the underground mine permit?

Official title

Opinion of the Attorney General Regarding a Mine Operator's Duty to Inspect Operations

Plain-English summary

A coal mine had stopped producing coal but still held an active underground mining permit. The mine's openings were barricaded with dirt. The operator was dismantling surface equipment, loading it onto trailers, and moving it offsite. The Director of the West Virginia Offices of Miners' Health, Safety & Training asked the AG whether W. Va. Code § 22A-2-53c(10)(e), which requires daily inspections "[w]hen mining operations are performed within any twenty-four hour period," still applied to this dismantling activity.

The AG's best reading: the daily inspection requirement does not apply to dismantling-only activity. The statute uses present-tense language tied to active mining. The definition of "mine" in W. Va. Code § 22A-1-2(a)(6) covers surface structures that "contribute" (present tense) to mining activity, not structures that previously did. The related Surface Coal Mining and Reclamation Act defines "mining operations" as activities for "the removal of coal," not activities for removing equipment that used to remove coal. Reading these provisions together suggests dismantling is not "mining operations."

The opinion was unusually candid about its limits. It explicitly recognized this is a close question; the Supreme Court of Appeals had not addressed it; and the Office of Miners' Health, Safety & Training has a duty to give "prime consideration" to miner safety, which could push a court toward a broader reading. If a court found the term ambiguous, the safety-promoting presumption could justify a different outcome. Under Sniffin v. Cline and Chevron, a longstanding agency interpretation could be upheld as a permissible reading of an ambiguous text.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at the time

For mine operators in 2021

Under the AG's best reading, an operator dismantling and removing surface equipment from a non-producing mine could pause the daily-inspection-and-recording obligation under § 22A-2-53c(10)(e). But the opinion acknowledged the question is close. Operators who chose to halt daily inspections relied on the AG's reading at their own risk if the agency took a different position.

For the Office of Miners' Health, Safety & Training in 2021

The opinion gave the agency room to take a different position if it saw safety reasons. Under Sniffin/Chevron deference, a longstanding agency interpretation requiring daily inspections during dismantling could be upheld in court as a permissible reading. The opinion was an AG view of "the best reading," not a rule binding the agency.

For coal industry attorneys in 2021

The opinion was useful as a litigation argument that dismantling is outside § 22A-2-53c(10)(e). It cautioned, though, that the safety-protective canon and agency deference both point the other way, so an operator relying on this opinion in court would have a tough sell if the agency had previously enforced daily inspections during dismantling.

For mine inspectors in 2021

The opinion did not displace the inspector's existing duties under § 22A-2-77 and § 22A-2-78, which require regular state inspections during the tenure of the permit. So even if the operator's daily inspection duty was suspended for dismantling-only activity, state inspectors continued to have an oversight role.

Common questions

Q: What does § 22A-2-53c(10)(e) require?
The statute says: "When mining operations are performed within any twenty-four hour period, operations shall be inspected at least every twenty-four hours to assure safe operation and compliance with the law and rules. The results of which inspection shall be recorded." Daily inspection by the operator, contemporaneous record-keeping.

Q: Why was the term "mining operations" so important?
The duty kicks in only "[w]hen mining operations are performed." If dismantling counts as "mining operations," daily inspections continue. If it does not, they pause. The statute does not define "mining operations," so the question turned on context.

Q: How did the AG read the related "mine" definition?
The "mine" definition in W. Va. Code § 22A-1-2(a)(6) includes "the surface structures or equipment connected or associated therewith which contribute directly or indirectly to the mining, preparation or handling of coal." The AG focused on "contribute" (present tense). Equipment that previously contributed but no longer does is not part of a "mine" under this reading.

Q: What did the opinion say about agency deference?
The opinion acknowledged that under Sniffin v. Cline and Chevron, a court might "defer to a contrary agency interpretation as a 'permissible' reading of an undefined statute." The AG's view of the statute was the best reading, not the only reading.

Q: What about safety-protective canons?
The opinion noted that mining safety statutes are interpreted "liberally to effect the purpose of protecting the health and safety of the miner" (United Mine Workers v. Faerber). That presumption pushes toward broader inspection coverage, even during dismantling. The AG balanced this canon against the textual analysis.

Background and statutory framework

W. Va. Code § 22A-2-53c imposes a series of duties on underground coal mine operators to ensure safe operating conditions. Subsection (10)(e) is the daily-inspection-and-recording duty.

The interpretive framework starts with the statutory text. "Mining operations" is undefined. Under standard West Virginia interpretation, undefined terms get their "common, ordinary and accepted meaning." Context matters, particularly the surrounding statute's definitions and structure.

The "mine" definition in § 22A-1-2(a)(6) covers shafts, slopes, drifts, and inclines that "are ventilated by one general air current" and connected by "one general system of mine haulage," plus "surface structures or equipment connected or associated therewith which contribute directly or indirectly to the mining, preparation or handling of coal." Notably, the Legislature added forward-looking language for excavations that "are intended in the future to be connected" with a working mine, but did not add similar past-tense language for surface structures. The AG read that asymmetry as significant: the Legislature considered both past and future framings and chose only future inclusion, suggesting structures no longer contributing fall out of the definition.

The "active workings" definition at § 22A-1-2(c)(2) describes "all places in a mine that are ventilated and inspected regularly," reinforcing the idea that some parts of a mine are "active" while others are not.

The Surface Coal Mining and Reclamation Act (W. Va. Code § 22-3-3(u)(1)) defines "mining operations" as activities "for the removal of coal." Reading the two chapters together, "mining operations" connects to coal removal, not equipment removal.

Against that, the safety-protective canon (Faerber) presses for the broadest miner-protective reading. The AG's best-reading conclusion was contingent: if the Supreme Court of Appeals later weighed in, or if the agency took a different consistent position, the analysis could shift.

Citations

• W. Va. Code § 5-3-1
• W. Va. Code § 22A-1-1 (legislative findings, prime consideration to miner safety)
• W. Va. Code § 22A-1-2(a)(6) (definition of "mine")
• W. Va. Code § 22A-1-2(c)(2) (definition of "active workings")
• W. Va. Code § 22A-2-53c(10)(e) (daily inspection requirement)
• W. Va. Code §§ 22A-2-77, 22A-2-78 (state inspector duties during permit tenure)
• W. Va. Code § 22-3-3(u)(1) (Surface Coal Mining Act, "mining operations" definition)
• Smith v. State Workmen's Comp. Com'r, 159 W. Va. 108, 219 S.E.2d 361 (1975)
• United Mine Workers of Am. v. Faerber, 179 W. Va. 65, 365 S.E.2d 345 (1986)
• Sniffin v. Cline, 193 W. Va. 370, 456 S.E.2d 451 (1995)
• Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984)
• Appalachian Power Co. v. State Tax Dep't of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995)

Source

• Landing page: https://ago.wv.gov/media/17611/download?inline
• Original PDF: https://ago.wv.gov/media/17611/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

May 26, 2021

Eugene White, Director
West Virginia Offices of Miners' Health, Safety & Training

7 Players Club Drive, Suite 2

Charleston, WV 25311

Dear Director White:

You have asked for an Opinion of the Attorney General pertaining to the scope of a mine operator's duty to inspect operations under West Virginia Code § 22A-2-53c(10)(e). This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions ... upon questions of law, whenever required to do so, in writing, by ... any ... state officer, board or commission." To the extent this Opinion relies on facts, it depends solely on the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your request describes a question that has arisen concerning a particular coal mine that has an active West Virginia underground mine permit, but has ceased producing coal. The mine's openings have been barricaded with dirt and the mine operator is currently in the process of dismantling mining equipment located on the surface including loading the equipment onto trailers and moving it offsite.

Your letter raises the following legal question:

Do the provisions of West Virginia Code § 22A-2-53c(10)(e) requiring a mine operator to inspect mining operations every twenty-four hours, and record the results of such inspections, apply where the mine operator is engaged only in the process of dismantling, loading, and moving surface mining equipment?

We conclude that the best reading of the statute is that the daily inspection and recording requirements do not apply under the particular facts you describe. We also note, however, that this is a close question of statutory interpretation that the Supreme Court of Appeals of West Virginia has not addressed. If the meaning of "mining operations" were to arise in litigation, a reviewing court might thus conclude, under principles of deference to a longstanding agency interpretation, that a contrary reading is a reasonable interpretation of a potentially ambiguous term.

Discussion

West Virginia Code § 22A-2-53c imposes affirmative duties and obligations on underground coal mine operators in order to ensure safe operating conditions. Specifically, Section 22A-2-53c(10)(e) provides:

When mining operations are performed within any twenty-four hour period, operations shall be inspected at least every twenty-four hours to assure safe operation and compliance with the law and rules. The results of which inspection shall be recorded.

Chapter 22A of the West Virginia Code does not provide a definition for the term "mining operations." The Chapter's definition section does, however, define "mine":

The term "mine" includes the shafts, slopes, drifts or inclines connected with, or intended in the future to be connected with, excavations penetrating coal seams or strata, which excavations are ventilated by one general air current or divisions thereof, and connected by one general system of mine haulage over which coal may be delivered to one or more points outside the mine, and the surface structures or equipment connected or associated therewith which contribute directly or indirectly to the mining, preparation or handling of coal, or construction thereof

W. Va. Code § 22A-1-2(a)(6) (emphasis added). This definition makes clear that "surface structures and equipment" are part of a mine only where they are "connected or associated" with underground structures and "contribute directly or indirectly" to mining, coal preparation, or underground construction. Id. The same factors that distinguish between surface structures that are (and are not) part of a "mine" can also resolve what subset of surface operations are properly classified as "mining" operations: activities surrounding the structures that "contribute" to ongoing mining and construction-related activity.

Several statutory features support the conclusion that above-ground activities are "mining operations" only where they support current mining activity. To begin, tying the inspection and recording requirements to "operations" puts the statute's focus on action, as opposed to structures that supported mining activity in the past. The definition of "mine" similarly uses present tense to describe surface structures that "contribute directly or indirectly" to mining activity. W. Va. Code § 22A-1-2(a)(6). The Legislature could have included structures that "contributed" or are "capable of contributing" as well; the fact it did not is particularly telling where the same definition goes out of its way to include features that are both currently connected to excavations or intended to be connected "in the future." Id. Similarly, Section 22A-1-2 describes the concept of "active workings" as "all places in a mine that are ventilated and inspected regularly." Id. § 22A-1-2(c)(2) (emphasis added). Interpreting the daily inspection requirement too broadly would thus create tension with the Legislature's apparent understanding that some parts of a mine, those not part of its "active" workings, lack regular inspections.

The West Virginia Surface Coal Mining and Reclamation Act also suggests that the Legislature did not intend for "mining operations" to include removing a mine's surface structures. This statute is in a separate but related chapter of the Code, and statutory provisions "which relate to the same subject matter should be read and applied together, so that the Legislature's intention can be gathered from the whole of the enactments." Syl. pt. 3, Smith v. State Workmen's Comp. Com'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Under the Surface Coal Mining and Reclamation Act, "mining operations" are defined as "[a]ctivities conducted on the surface of lands for the removal of coal, or ... surface operations and surface impacts incident to an underground coal mine." W. Va. Code § 22-3-3(u)(1). This definition indicates that when it comes to above-ground activity, mining operations are either tied directly to removing coal or are related to that same goal. It does not encompass, or at least not necessarily, activities necessary to remove materials that used to remove coal. Reading this definition in pari materia with Section 22A-2-53c is accordingly additional evidence that daily inspections are not required where a mine no longer processes coal and all that remains is to dismantle and remove no-longer-needed equipment.

We recognize, however, that despite these text- and context-based cues the meaning of "mining operations" in Section 22A-2-53c(10)(e) is a close question. The Legislature did not define this key term, and the Supreme Court of Appeals has not had an opportunity to weigh in. Further, the Office of Miners' Health, Safety & Training has a duty to "give prime consideration to the protection of the safety and health of persons employed within or at the mines of this state" when enforcing Chapter 22A. W. Va. Code § 22A-1-1(b). And the Supreme Court of Appeals has explained that where it is necessary to interpret mining-related statutes, "the legislation is to be interpreted liberally to effect the purpose of protecting the health and safety of the miner." United Mine Workers of Am. v. Faerber, 179 W. Va. 65, 69, 365 S.E.2d 345, 349 (1986) (citation omitted). These health-and-safety concerns are less pressing under the specific facts you describe, you explain that the mine in question still has an active underground mining permit, and the Code requires regular safety disclosures for all mines on active status as well as "frequent examinations" "by the mine inspector during the tenure of the permit." W. Va. Code §§ 22A-2-77, 22A-2-78. Nevertheless, if a reviewing court finds the definition of "mining operations" ambiguous, this safety-promoting presumption may support a broader reading.

We therefore conclude that the best interpretation of Section 22A-2-53c given its terms and statutory context is that "mining operations" does not include activities limited to disassembling and removing materials after underground mining operations have been shuttered. But we also emphasize that a reviewing court might defer to a contrary agency interpretation as a "permissible" reading of an undefined statute. See Sniffin v. Cline, 193 W. Va. 370, 374, 456 S.E.2d 451, 455 (1995) (citing Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843 (1984)). Indeed, reviewing courts frequently uphold longstanding and consistent agency interpretations that reasonably interpret ambiguous text. Appalachian Power Co. v. State Tax Dep't of W. Va., 195 W. Va. 573, 591 n.24, 466 S.E.2d 424, 442 n.24 (1995). Our conclusion when reviewing the statute on its own terms might thus change were this case to arise in a context that implicates the doctrine of agency deference.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Virginia Payne
Assistant Solicitor General