Does West Virginia mine safety law require pre-shift examinations of an underground coal mine while the mine is idle and no miners are working underground?

Plain-English summary

West Virginia underground coal mines sit idle for many reasons: weekends, vacation weeks, and (in 2014, when this opinion was issued) extended downtime caused by depressed coal market conditions. The Office of Miners' Health, Safety & Training (OMHST) had long taken the position that mine operators do not need to keep running pre-shift examinations during a true idle period unless miners are scheduled to start working underground within three hours.

Director White asked the AG whether that interpretation was right. The AG said yes.

The pre-shift examination requirement in W. Va. Code § 22A-2-1 et seq. is built around the start of a shift. W. Va. Code § 22A-2-13 requires the mine foreman, assistant mine foreman, or fire boss to "carefully examine each working place in which miners will be working at the beginning of each shift." W. Va. Code § 22A-2-14 says the examination must occur "within three hours prior to the beginning of a shift and before any miner in such shift enters the active workings of the mine." W. Va. Code § 22A-2-20 sets out the signals used to indicate that a mine is safe so that "employees going on shift may begin work." Together, these provisions key the pre-shift exam to a beginning of shift, not to the mere passage of time during an idle stretch.

The AG also leaned on agency-deference principles. OMHST has consistently interpreted the statute this way for years; courts give significant deference to a long-standing administrative interpretation that "tracks the plain text" of the statute. The AG cited the standard "great weight" rule (Sec. Nat. Bank & Trust Co. v. First W. Va. Bancorp.) and the older "contemporary exposition" doctrine (State ex rel. Ballard v. Vest). And even without deference, the AG concluded the statutes were clear on their face that pre-shift examinations attach to shifts, not to idle periods.

The AG was careful to limit the scope. The opinion does not say miners can ignore other mine-safety obligations during an idle period. It is specifically about the pre-shift examination requirement, and even there, OMHST and operators must still attend to other examinations and inspections that state or federal law may impose, such as those discussed in Itmann Coal Co. v. Miller (1980).

Currency note

This opinion was issued in 2014. 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.

Common questions

Q: When does the AG say a pre-shift examination must happen?
A: Within three hours before the start of a shift, but only if a shift is actually starting. The statute does not require ongoing pre-shift examinations when no miners are scheduled to be underground.

Q: Are mines free of all safety inspections when they are idle?
A: No. The AG was explicit that this opinion does not address any other examination requirements. The opinion says other state or federal mine-safety examinations may also be required, and that performing one examination does not necessarily eliminate another. It does not decide the requirements for any particular other examination.

Q: What about unscheduled or emergency entries during an idle period?
A: The opinion does not analyze unscheduled or emergency entry into an idle mine. Its conclusion addresses pre-shift examinations while no shift is starting and reserves other state or federal examination requirements.

Q: Why did the AG consider OMHST's interpretation?
A: The AG cited the rule that an agency's interpretation of a statute it administers receives "great weight unless clearly erroneous." OMHST had consistently applied its reading for many years. The AG also said the statutory text supported the same answer without relying on deference.

Q: What if the statutory text is clear without any need for deference?
A: The AG said that even without deference, the plain text of §§ 22A-2-13, -14, and -20 is clear that the pre-shift requirement is tied to the beginning of a shift. Citing Algoma Coal & Coke Co. v. Alexander, deference is unnecessary "where there exists no ambiguity in the statutes."

Background and statutory framework

W. Va. Code § 22A-2-1 et seq. is the West Virginia mine-safety statute. The opinion describes the pre-shift examination as a check of each working place where miners will work at the start of a shift, before face equipment is energized. It also cites the statutory signals used to indicate that employees going on shift may begin work.

Three statutes carry the pre-shift requirement:

• § 22A-2-13 assigns the duty to the mine foreman, assistant mine foreman, or fire boss, who "shall visit and carefully examine each working place in which miners will be working at the beginning of each shift before any face equipment is energized."
• § 22A-2-14 sets the timing: "within three hours prior to the beginning of a shift and before any miner in such shift enters the active workings of the mine."
• § 22A-2-20 governs the signals that indicate the mine is safe for the shift to begin work.

The AG read these three provisions together as creating a "beginning of shift" rule, not a perpetual examination duty. The Supreme Court of Appeals had already drawn this distinction in Itmann Coal Co. v. Miller (1980), separating pre-shift examinations from other mine-safety examinations and emphasizing that the Legislature has built "nonexclusive, multiple safety examinations for potential safety risks, one of which is preshift examination of the entire mine."

Citations and references

Statutes:

• W. Va. Code § 22A-2-13 (foreman's pre-shift examination duty)
• W. Va. Code § 22A-2-14 (three-hour timing requirement)
• W. Va. Code § 22A-2-20 (mine-safe signals)

Cases:

• Itmann Coal Co. v. Miller, 166 W. Va. 84, 272 S.E.2d 668 (1980) (pre-shift examinations distinct from other mine-safety examinations)
• Sec. Nat. Bank & Trust Co. v. First W. Va. Bancorp., Inc., 166 W. Va. 775, 277 S.E.2d 613 (1981) (great weight to agency interpretation)
• State ex rel. Ballard v. Vest, 136 W. Va. 80, 65 S.E.2d 649 (1951) (contemporary exposition doctrine)
• Algoma Coal & Coke Co. v. Alexander, 136 W. Va. 521, 66 S.E.2d 201 (1950) (no deference where statute is unambiguous)

Source

• Landing page: https://ago.wv.gov/media/18061/download?inline
• Original PDF: https://ago.wv.gov/media/18061/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

October 21, 2014

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 requirement under West Virginia law to conduct pre-shift examinations of underground coal mines. 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 with the Office of the Attorney General.

In your letter, you note that the Office of Miners' Health, Safety & Training ("OMHST") has interpreted West Virginia Code §§ 22A-2-1 et seq. not to require a pre-shift examination while an underground mine is idle, unless miners are scheduled to begin working underground within three hours. Underground coal mines, you explain, are idle for a number of reasons. "Some are idle on Saturdays or Sundays or both; some are idle for an entire week for miner vacations; and recently some are idle for extended periods of time due to the market conditions of coal." You further explain that OMHST has read West Virginia Code §§ 22A-2-13, -14, and -20 to require pre-shift examinations three hours prior to the beginning of any shift during which miners will be working underground, but that OMHST does not read the law to otherwise require such examinations during an idle period. It is our understanding that OMHST has consistently applied this interpretation for many years.

Your letter raises the following legal question:

> Do West Virginia Code §§ 22A-2-1 et seq. require pre-shift examinations while an underground coal mine is idle, i.e., no miners are working underground?

After reviewing the relevant state law, we agree with OMHST's long-standing view that West Virginia Code §§ 22A-2-1 et seq. require pre-shift examinations three hours before miners are scheduled to begin working underground but do not otherwise require such examinations during an idle period. As you note in your letter, there are three statutory provisions that speak specifically to the requirement to conduct examinations prior to the beginning of a shift, i.e., pre-shift. See W. Va. Code § 22A-2-13 ("The mine foreman, assistant mine foreman or fire boss shall visit and carefully examine each working place in which miners will be working at the beginning of each shift before any face equipment is energized . . . ." (emphasis added)); id. § 22A-2-14 ("It shall be the duty of the mine foreman, assistant mine foreman or fire boss to 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." (emphasis added)); id. § 22A-2-20 (requiring a "fire boss" or "certified person acting as such" to use certain signals in the course of conducting an examination "to indicate that [a] mine is safe in order that employees going on shift may begin work" (emphasis added)).

We believe that the provisions clearly require that a beginning-of-shift examination must occur "within three hours prior to the beginning of a shift," id. § 22A-2-14, but do not otherwise suggest an on-going requirement to perform pre-shift examinations while an underground mine is idle. Indeed, such an on-going requirement would be inconsistent with the very idea of a beginning-of-shift examination. See Itmann Coal Co. v. Miller, 166 W. Va. 84, 86, 272 S.E.2d 668, 670 (1980) (distinguishing pre-shift examinations, which must be performed three hours prior to the beginning of a shift, from other mine-safety examinations).

To the extent there is any ambiguity in the statutes, we believe that the courts would defer to OMHST's interpretation. 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. At worst, OMHST's interpretation is not entitled to deference because the statutes are clear on their face. See Algoma Coal & Coke Co. v. Alexander, 136 W. Va. 521, 537, 66 S.E.2d 201, 209 (1950) (refusing to give deference where "there exists no ambiguity in the statutes").

We note, however, that the conclusions in this Opinion do not speak to any other mine-safety examinations that may also be required by state or federal law. As the Supreme Court of Appeals has recognized, there are various nonexclusive mine-safety examinations required under the West Virginia Code. The performance of some does not necessarily eliminate the need to perform others. See Itmann Coal Co., 166 W. Va. at 87-88, 272 S.E.2d at 670-71 ("To promote safety in a highly dangerous business, the Legislature has provided nonexclusive, multiple safety examinations for potential safety risks, one of which is preshift examination of the entire mine.").

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Steven Travis
Assistant Attorney General