WV 2021-17626 July 8, 2021

When a coal operator wants a site-specific exemption for diesel-powered equipment in an underground mine, who decides, the WV Office of Miners' Health, Safety & Training or the State Coal Mine Safety Technical Review Committee?

Short answer: The Office of Miners' Health, Safety and Training (OMHST) decides. The legislature gave the Technical Review Committee and Coal Board general site-specific rulemaking authority for mine safety, but a separate, more specific statute (§ 22A-2A-310(b)) puts diesel-equipment requests in OMHST's hands. Under WV's specific-controls-the-general rule, OMHST wins on diesel.

Disclaimer: This is an official West Virginia Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed West Virginia attorney for advice on your specific situation.

Official title

Opinion of the Attorney General Regarding Site-Specific Rulemaking Authority for the use of Diesel-Powered Equipment in Underground Coal Mines

Plain-English summary

Two West Virginia statutes appeared to give two different agencies the same power: the authority to grant a coal mine a site-specific exemption from rules governing diesel equipment underground. The general statute (§ 22A-6-7) put site-specific rulemaking with the Technical Review Committee, which makes recommendations to the Coal Board. The narrower statute (§ 22A-2A-310(b)) put diesel equipment specifically with the Director of the Office of Miners' Health, Safety and Training (OMHST).

The AG concluded that OMHST controls. Where two statutes conflict, the more specific one wins, and § 22A-2A-310(b) speaks directly to diesel-powered equipment underground. The TRC/Coal Board still handles site-specific rulemaking for everything else in coal mine safety.

The opinion adds a caveat about diesel generator venting. Section 22A-2A-1001(10) flatly requires that any underground diesel generator vent directly into the mine return air with a person in sight and sound of it. OMHST probably has authority to grant a site-specific variance from that rule too, but the AG cautions that a court reviewing such a variance would likely give weight to the legislature's pointed safety directive on this specific point.

What this means for you

For coal operators and mine engineers

If you want a site-specific modification to a rule about diesel-powered equipment in an underground mine, including the use of an alternative diesel-related health and safety technology, you petition OMHST, not the Coal Board. The opinion treats this as the legislature's deliberate choice, so there is no point in routing the request through the TRC.

If you are seeking a site-specific exemption from the general "vent directly to the return" rule for an underground diesel generator, OMHST is still the right agency, but you should expect a high evidentiary bar. The AG's opinion explicitly tells OMHST to give "appropriate consideration" to the legislature's strong safety directive on this specific point. Practically, you should be ready to show why your alternative venting plan provides equivalent or better miner protection.

For mine safety officers and OMHST staff

The opinion confirms OMHST's jurisdiction over diesel-equipment site-specific requests and gives OMHST flexibility to consider variances from § 22A-2A-1001(10). It also tells OMHST that variances on the venting rule should not be issued lightly: the legislature spoke to this hazard directly, and a court reviewing an exemption will scrutinize OMHST's safety rationale.

For local prosecutors and county officials

If a coal operator brings you a site-specific approval document from the Coal Board purporting to authorize a diesel-equipment variance, that document is on shaky legal footing under this opinion. The Coal Board lacks authority over diesel-specific site requests; only OMHST does.

Common questions

Why did this question even arise?

The legislature wrote a general site-specific rulemaking statute for mine safety in 1985, then separately authorized diesel-powered equipment in underground mines in 1997 and gave OMHST specific responsibilities for diesel approvals. The two statutes overlap on the narrow question of "who decides whether a particular mine can use diesel equipment in a non-standard way." This opinion resolves the overlap.

Can OMHST and the TRC/Coal Board both consider the same request?

No. The AG concluded that concurrent jurisdiction would be untenable in a safety context, because mine operators could end up with conflicting site-specific rules from two different bodies. One agency must decide, and on diesel it is OMHST.

What's the difference between a "general" and "specific" statute under West Virginia law?

The Supreme Court of Appeals of West Virginia held in Barber v. Camden Clark Memorial Hospital Corp. that "[t]he general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Section 22A-2A-310(b) names diesel-powered equipment in underground coal mines specifically. Section 22A-6-7(e) covers all site-specific rulemaking for the mining industry generally. Diesel-specific wins.

Does this opinion change the substantive safety rules?

No. It only resolves the procedural question of which agency considers requests for site-specific deviations. The underlying safety statutes, including the requirement that diesel generators vent directly to the mine return, remain in effect. OMHST has discretion to grant site-specific exemptions, but the substantive standards in Chapter 22A still control what those exemptions can look like.

Can a court overturn an OMHST diesel-equipment decision?

Yes, on the same grounds courts overturn other agency rulemaking, arbitrariness, exceeding statutory authority, or failure to consider relevant factors. The AG's opinion specifically flags that any OMHST exemption from § 22A-2A-1001(10) (the venting requirement) will face heightened scrutiny because the legislature singled out that hazard.

Background and statutory framework

The West Virginia Coal Mine Safety and Technical Review Committee (TRC) is one of two bodies the legislature created to oversee mine safety rulemaking. Under W. Va. Code § 22A-6-7(a)(3), one of the TRC's primary functions is to "accept and consider petitions submitted by individual mine operators or miners seeking site-specific rule making pertaining to individual mines and make recommendations to the board considering such rule making." The TRC then makes recommendations to the Board of Coal Mine Health and Safety (Coal Board), which may adopt them only if "the mine will not reduce or compromise the level of safety or protection afforded miners below that level of safety or protection afforded by any applicable statutes." § 22A-6-7(f)(3).

In 1997, the legislature authorized the use of diesel-powered equipment in underground coal mines for the first time. W. Va. Code § 22A-2A-101. It later vested the Director of OMHST with specific duties relating to this equipment, including the authority to "consider site-specific requests for the use of diesel equipment in underground coal mines and for the use of alternative diesel-related health and safety technologies and methods." § 22A-2A-310(b). The Director is also tasked with revising rules to allow diesel generators in underground mines, but only with venting to the return and a person stationed within sight and sound. § 22A-2A-1001(10).

The Director of OMHST and the Coal Board jointly asked the Attorney General which body has the final word on diesel-specific site requests. The opinion resolves the question by applying West Virginia's standard rule on conflicting statutes from Barber v. Camden Clark: when two statutes cover the same subject and cannot be reconciled, the more specific statute controls.

Citations

W. Va. Code § 5-3-1 (Attorney General's duty to issue legal opinions to state officials)
W. Va. Code § 22A-2A-101 (authorization of diesel-powered equipment in underground coal mines)
W. Va. Code § 22A-2A-310(b) (OMHST authority over site-specific diesel equipment requests)
W. Va. Code § 22A-2A-602(b)(1) (OMHST discretion over underground diesel fuel tanks)
W. Va. Code § 22A-2A-604(a) (approval of plans for fueling diesel equipment in intake escapeways)
W. Va. Code § 22A-2A-1001(10) (diesel generator venting requirement)
W. Va. Code § 22A-6-7 (TRC and Coal Board authority over site-specific mine rulemaking)
Barber v. Camden Clark Memorial Hospital Corp., 240 W. Va. 663, 815 S.E.2d 474 (2018) (specific-controls-the-general canon)

Source

Landing page: not separately published (the PDF is the official record)
Original PDF: https://ago.wv.gov/media/17626/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

July 8, 2021

Eugene White, Director
West Virginia Office 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 concerning which entity has authority to grant site-specific modifications to the statutes and rules governing diesel-powered equipment in underground coal mines. This Opinion is being issued pursuant to West Virginia Code Section 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 is based solely on the factual assertions set forth in your correspondence with the Office of the Attorney General.

Your request involves the interplay of statutory powers between, on the one hand, the Director of the Office of Miners' Health, Safety and Training ("OMHST"), and on the other, the State Coal Mine Safety and Technical Review Committee/Board of Coal Mine Health and Safety ("TRC/Coal Board"). In your correspondence you note that the West Virginia Legislature has generally granted the TRC/Coal Board authority to consider petitions submitted by mine operators seeking a site-specific rule modification. You also note that the Legislature has authorized the use of diesel-powered equipment in underground coal mines and assigned certain duties and responsibilities regarding approval of diesel-power equipment, again on a site-specific basis, to OMHST.

Your letter raises the following legal question:

Did the Legislature vest OMHST or the TRC/Coal Board with the authority to consider petitions for a site-specific modification to statutes or rules governing the use of diesel-powered equipment in underground coal mines?

We conclude that although generally the TRC/Coal Board is vested with the authority to consider petitions seeking site-specific rules relating to mine operation or mine safety, OMHST possesses this power in the specific context of site-specific requests for using diesel equipment in underground mines.

Discussion

One of the primary functions of the TRC is to "[a]ccept and consider petitions submitted by individual mine operators or miners seeking site-specific rule making pertaining to individual mines and make recommendations to the board considering such rule making." W. Va. Code § 22A-6-7(a)(3). Specifically, the TRC makes recommendations to the Coal Board regarding "rules with general mining industry application." Id. § 22A-6-7(e). The TRC may also "accept requests for site-specific rulemaking on a mine-by-mine basis" and recommend site-specific rules to the Coal Board. Id. § 22A-6-7(f)(1). The Coal Board, in turn, may adopt the TRC's recommendation only where applying the site-specific rule to the specific "mine will not reduce or compromise the level of safety or protection afforded miners below that level of safety or protection afforded by any applicable statutes." Id. § 22A-6-7(f)(3).

In the more specific context of diesel-powered equipment, in 1997 the Legislature authorized the use of diesel-powered equipment in underground coal mines. See W. Va. Code § 22A-2A-101. More recently, the Legislature vested the Director of OMHST with certain duties relating to authorizing this type of equipment. See id. § 22A-2A-310, et seq. As most relevant to your question, the Director has authority to "consider site-specific requests for the use of diesel equipment in underground coal mines and for the use of alternative diesel-related health and safety technologies and methods." Id. § 22A-2A-310(b). The Legislature also tasked the Director with revising rules promulgated pursuant to Chapter 22A of the West Virginia Code to allow "diesel generators in underground mines," but only if "the generator is vented directly to the return and at least one person is present within sight and sound of the generator." Id. § 22A-2A-1001(10).

Your letter explains that, together with the Coal Board, you are seeking an opinion on "the general issue" of which of these two entities "has the authority to consider requests for modification to statutory or rule created diesel equipment mine safety laws on a site-specific basis for an individual mine." A plain reading of these statutory provisions reveals that the Director of OMHST is charged with considering requests for the use of diesel-powered equipment or diesel-related alternative technologies, while the TRC/Coal Board is vested with the authority to consider site-specific rule-making requests relating to the mining industry more generally.

Regarding questions of overlapping or conflicting statutes, the Supreme Court of Appeals of West Virginia has held that "[w]here two statutes are in apparent conflict, the Court must, if reasonably possible, construe such statutes so as to give effect to each." Syl. pt. 9, Barber v. Camden Clark Mem'l Hosp. Corp., 240 W. Va. 663, 815 S.E.2d 474 (2018) (citation omitted). More specifically, the Court has also explained that "[t]he general rule of statutory construction requires that a specific statute be given precedence over a general statute relating to the same subject matter where the two cannot be reconciled." Syl. pt. 10, id. (citation omitted).

Here, the relevant statutory provisions are in apparent conflict because they seemingly confer the same rule-making authority on both OMHST and the TRC/Coal Board. West Virginia Code Section 22A-2A-310(b) expressly vests the Director of OMHST with the authority to consider requests for the use of diesel-powered equipment in underground coal mines. Yet West Virginia Code Section 22A-6-7(e) seemingly vests the TRC/Coal Board with the same authority, because the general power it describes to consider site-specific rule-making requests would seem to include the subset of requests related to diesel-powered equipment. Further, applying the principles of statutory interpretation outlined in Barber, it appears that these interpretations cannot be reconciled to grant both entities concurrent power: Particularly in an area of the law concerned with safety, e.g., W. Va. Code § 22A-6-7, the potential for confusion and conflicting rules from two separate entities would be an untenable reading of the statutes.

As such, Barber instructs that the statute containing the most specific language controls. That statute is Section 22A-2A-310(b) because it addresses the narrow issue of rule-making authority relating to diesel-powered equipment in underground coal mines, whereas Section 22A-6-7(e) vests the TRC/Coal Board with broad authority to consider rule-making requests more generally. We therefore conclude that although generally the TRC/Coal Board is vested with the authority to consider a petition seeking site-specific rules relating to mine operation or mine safety, the Legislature's more specific delegation to OMHST in Section 22A-2A-310(b) means that OMHST, not the TRC/Coal Board, has power to issue site-specific rules relating to the use of diesel-powered equipment.

You also note that the question that brought this issue to a head relates to the requirement in West Virginia Code Section 22A-2A-1001(10) that a diesel generator located in an underground coal mine be vented directly into the mine return. As our analysis above explains, if any entity has authority to modify this requirement on a site-specific basis, it is OMHST. Nevertheless, we also note that this requirement is within the part of the statute where the Legislature gave explicit health-and-safety directives for specific situations, here, that diesel-powered generators are allowed in underground coal mines only if "the generator is vented directly to the return." Id. § 22A-2A-1001(10). To be sure, site-specific rulemaking authority in this context generally includes power to modify a default legislative directive. See id. § 22A-2A-604(a) (allowing approval of plans for fueling diesel-powered equipment in intake escapeways when necessary based upon mine design, despite general prohibition on fueling in intake escapeways.); id. § 22A-2A-602(b)(1) (giving discretion to either prohibit underground diesel fuel tanks or establish petitioning process for the allowance of underground diesel fuel tanks on a site-specific basis). And nothing in the remainder of this statute speaks to whether the Legislature exempted any parts of the relevant Code from OMHST's site-specific rulemaking power. Thus, while a reviewing court would likely conclude that OMHST has power to grant exemptions from Section 22A-2A-1001(10) in appropriate circumstances, when reviewing OMHST's rationale for any exemption a court may also give weight to the Legislature's strong statutory directive about what safety looks like in the specific context of underground coal mine vents. We therefore urge OMHST to give appropriate consideration to this statutory default when considering any site-specific rulemaking requests that involve Section 22A-2A-1001(10).

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Virginia Payne
Assistant Solicitor General