When does West Virginia mine-safety law require an underground coal operator to maintain track within 500 (now 1,500) feet of the working face: only when track-mounted personnel carriers are the sole transport method, or whenever any track-mounted carrier is used?
Plain-English summary
West Virginia mine-safety law requires that "[w]here transportation of personnel is exclusively by rail, track shall be maintained to within five hundred feet of the nearest working face." (After Senate Bill 357 took effect June 1, 2015: 1,500 feet.) The Office of Miners' Health, Safety & Training (OMHST) has historically interpreted "exclusively by rail" to apply only when track-mounted carriers are the sole means of getting miners to and from the working section. If a mine uses a mix of track-mounted and rubber-tired personnel carriers, OMHST does not enforce the track-maintenance distance.
OMHST asked the AG to confirm that interpretation, particularly after the 2015 amendments. The AG agreed.
Plain meaning of "exclusively." Merriam-Webster: "not shared," "available to only one person or group." United Fuel Gas Co. v. Morley Oil & Gas Co. (1926): "exclusively" is synonymous with "only" and "solely" and is "a word of restriction and exclusion." The Legislature is presumed to know that meaning when it uses the word.
Application. If a mine transports miners "only" or "solely" by track-mounted vehicles, the distance requirement applies. If it uses any other mode, including rubber-tired vehicles, the requirement does not apply. The opinion expressly does not address what other transport modes are lawful but notes that the law contemplates them (see § 22A-2-38(e), which addresses belts used to transport miners).
Agency deference as a backstop. Even if a court found the language ambiguous, OMHST's longstanding interpretation would get deference. Sec. Nat. Bank & Trust Co. v. First W. Va. Bancorp (1981): "[i]nterpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous." State ex rel. Ballard v. Vest (1951): contemporaneous administrative construction acquiesced in for a long time will be adopted "unless it is manifestly wrong." Neither standard is met here against OMHST's reading.
The 2015 amendment. Senate Bill 357 (effective June 1, 2015) extended the maximum distance from 500 to 1,500 feet, with a proviso that when track is maintained more than 500 but no more than 1,500 feet from the face, "a self-propelled rubber-tired vehicle capable of transporting an injured worker shall be readily available." That change addressed the maximum distance, not the "exclusively by rail" trigger.
Currency note
This opinion was issued in 2015. 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.
W. Va. Code § 22A-2-37 has been amended in subsequent legislative sessions, and federal mine safety law (MSHA regulations) overlay state requirements. Mine operators and safety officers should verify current state and federal requirements before relying on this analysis for compliance decisions.
Common questions
Q: What is the practical effect on a mine that uses both rail and rubber-tired personnel carriers?
A: The track-maintenance distance requirement in § 22A-2-37(a) does not apply. The mine still has other safety obligations and may have federal MSHA obligations, but the specific state-law track distance does not trigger.
Q: What if a mine uses rail for routine transport and rubber-tired only for emergencies?
A: This was not directly addressed. The AG focused on whether transport is "exclusively" by rail. A mine that genuinely uses both types in regular operations would likely fall outside the trigger. A mine that uses rail almost always but lists rubber-tired as a backup might be different. The factual line between "regular use" and "emergency reserve" is not in the opinion.
Q: What about the 2015 amendments? Why did they extend the distance?
A: The change from 500 to 1,500 feet, paired with the requirement that a self-propelled rubber-tired emergency-rescue vehicle be readily available between 500 and 1,500 feet, reflects a different policy balance: more flexibility on track distance, more requirement of rubber-tired emergency capability. The "exclusively" trigger stayed the same.
Q: What is "agency deference" in West Virginia?
A: When a state agency interprets a statute it is charged with administering, courts give that interpretation "great weight" unless it is "clearly erroneous" (Sec. Nat. Bank) or "manifestly wrong" (Ballard v. Vest). Long-standing interpretations get even more deference.
Q: Could a court reject the AG's reading?
A: AG opinions are persuasive but not binding. The textual case for "exclusively means only" is strong, and the agency-deference backstop reinforces it. A court could in theory disagree, but it would have to overcome both plain meaning and a long-standing administrative practice.
Q: Does this opinion address federal mine-safety requirements?
A: No. The opinion is about state law. Federal MSHA regulations may impose additional requirements that are not addressed here.
Background and statutory framework
The statute. W. Va. Code § 22A-2-37(a) (pre-2015): "Where transportation of personnel is exclusively by rail, track shall be maintained to within five hundred feet of the nearest working face, except that when any section is fully developed and being prepared for retreating, then the distance of such maintenance can be extended to eight hundred feet if a rubber tired vehicle is readily available." (Post-2015): 1,500 feet, with self-propelled rubber-tired vehicle capable of transporting an injured worker required between 500 and 1,500 feet.
Companion provision. W. Va. Code § 22A-2-38(e) addresses belts used to transport miners (acknowledging non-rail modes).
Plain-meaning canon. State v. Gen. Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137 (1959); Pond Creek Pocahontas Co. v. Alexander, 137 W. Va. 864 (1953); King v. W. Virginia's Choice, Inc., 234 W. Va. 440 (2014).
Definition of "exclusively." United Fuel Gas Co. v. Morley Oil & Gas Co., 102 W. Va. 374 (1926) ("exclusively" is synonymous with "only" and "solely" and is "a word of restriction and exclusion"). Merriam-Webster: "not shared," "available to only one person or group."
Agency deference. Sec. Nat. Bank & Trust Co. v. First W. Va. Bancorp., Inc., 166 W. Va. 775 (1981). State ex rel. Ballard v. Vest, 136 W. Va. 80 (1951).
Citations
- W. Va. Code §§ 5-3-1; 22A-2-37(a); 22A-2-38(e)
- 2015 W. Va. S.B. 357 (effective June 1, 2015)
- United Fuel Gas Co. v. Morley Oil & Gas Co., 102 W. Va. 374 (1926)
- State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137 (1959)
- Pond Creek Pocahontas Co. v. Alexander, 137 W. Va. 864 (1953)
- King v. W. Virginia's Choice, Inc., 234 W. Va. 440 (2014)
- Sec. Nat. Bank & Trust Co. v. First W. Va. Bancorp., Inc., 166 W. Va. 775 (1981)
- State ex rel. Ballard v. Vest, 136 W. Va. 80 (1951)
Source
- Landing page: https://ago.wv.gov/media/17961/download?inline
- Original PDF: https://ago.wv.gov/media/17961/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
May 27, 2015
Eugene White, Director
WV Office of Miners' Health, Safety & Training
7 Players Club Road
Suite 2
Charleston, WV 25311
Dear Mr. White:
You have asked for an Opinion of the Attorney General regarding the meaning of "exclusively by rail" as used in West Virginia Code § 22A-2-37(a). This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law . . . whenever required to do so, in writing, by . . . [a] state officer, board or commission." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence and other communications with the Office of the Attorney General.
In your letter, you explain the historical interpretation of West Virginia Code § 22A-2-37(a) by the Office of Miners' Health, Safety & Training ("OMHST"). Specifically, OMHST has concluded that track must be maintained to within five hundred feet of the face when track-mounted personnel carriers are used as the only means to transport miners to a working section, but that track does not need to be so maintained if a mine utilizes a combination of track-mounted and rubber-tired personnel carriers to transport miners to the working section. You have further explained that the OMHST interpretation of "exclusively by rail" is not changed by the recent amendments to Section 22A-2-37(a).
Your letter raises the following legal question:
Under West Virginia Code § 22A-2-37(a), when is a mine operator required to maintain track within the statutorily mandated distance of the nearest working face?
We turn first to the plain text of the statute. West Virginia Code § 22-2-37(a) currently provides, in relevant part, that "[w]here transportation of personnel is exclusively by rail, track shall be maintained to within five hundred feet of the nearest working face, except that when any section is fully developed and being prepared for retreating, then the distance of such maintenance can be extended to eight hundred feet if a rubber tired vehicle is readily available." This provision was amended during the 2015 legislative session to read, in relevant part, that "[w]here transportation of personnel is exclusively by rail, track shall be maintained to within one thousand five hundred feet of the nearest working face. . . Provided, That in any case where such track is maintained to within a distance of more than five hundred feet and not more than one thousand five hundred feet of the nearest working face, a self-propelled rubber-tired vehicle capable of transporting an injured worker shall be readily available." See Senate Bill No. 357. The amendment will take effect on June 1, 2015.
It is well settled that the Legislature's intent is primarily expressed in a statute's plain language. The Supreme Court of Appeals of West Virginia has long recognized that legislative intent, the controlling factor in interpreting a statute, is best determined from the language of the statute. State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 144-45, 107 S.E.2d 353, 358 (1959); see also Syl. Pt. 4, Pond Creek Pocahontas Co. v. Alexander, 137 W. Va. 864, 865, 74 S.E.2d 590, 591 (1953) ("In ascertaining the intent of the Legislature in the enactment of a statute and determining whether it is unambiguous, the grammatical construction, while not controlling, is an important aid."). Further, it is presumed "that a legislature says in a statute what it means and means in a statute what it says there." King v. W. Virginia's Choice, Inc., 234 W. Va. 440, 766 S.E.2d 387, 391 (2014) (citations omitted).
Here, the language in the statute is clear. The Legislature specifically used the word "exclusively" to trigger the requirement to maintain track within the statutorily mandated distance of the nearest working face. That term has an ordinary and familiar meaning, of which the Legislature was undoubtedly aware. See Syl. Pt. 4, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (holding that words of a statute are "to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use"). Something exclusive is "not shared" or is "available to only one person or group." Exclusive, Merriam-Webster Online (last visited May 26, 2015). Indeed, the Supreme Court of Appeals said nearly ninety years ago that the word "exclusively" is synonymous with the words "only" and "solely," and is "a word of restriction and exclusion." United Fuel Gas Co. v. Morley Oil & Gas Co., 102 W. Va. 374, 135 S.E. 399, 400 (1926).
Applying the ordinary and familiar meaning of "exclusively," it is plain the Legislature intended to limit the application of Section 22A-2-37(a) to situations where the transportation of miners is conducted "only" or "solely" by rail. In other words, the requirement of maintaining track within the statutorily mandated distance of the nearest working face applies only if a mine operator chooses to transport miners solely by track-mounted vehicles. If a mine operator does not choose to do so, it need not comply with the requirements of Section 22A-2-37(a). This Opinion does not address what other means a mine operator may legally employ to transport miners underground, though the law plainly contemplates alternative methods of doing so. See, e.g., W. Va. Code § 22A-2-38(e) ("When belts are used for transporting miners. . .").
While we do not find any ambiguity in the law, we believe that any court finding ambiguity would nevertheless defer to OMHST's interpretation, which is consistent with that described above. As the Supreme Court of Appeals has often reiterated, "[i]nterpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous." Syl. Pt. 4, Sec. Nat. Bank & Trust Co. v. First W. Va. Bancorp., Inc., 166 W. Va. 775, 277 S.E.2d 613 (1981). Moreover, "[a] contemporary exposition of a statute, uncertain in its meaning, recognized and acquiesced in, for a long period of time, by the officers charged with the duty of enforcing it, the courts, the Legislature and the people, will be adopted unless it is manifestly wrong." Syl. Pt. 4, State ex rel. Ballard v. Vest, 136 W. Va. 80, 65 S.E.2d 649 (1951). There is nothing clearly or manifestly wrong with OMHST's interpretation, which tracks the plain text of the statutes.
Sincerely,
Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Steven Travis
Assistant Attorney General