Itmann Coal Co. v. Miller

272 S.E.2d 668, 166 W. Va. 84, 1980 W. Va. LEXIS 621

• Court: West Virginia Supreme Court
• Decided: December 9, 1980
• Docket: No. 14619
• Status: Published

Opinion

Harshbarger, Justice:

The Department of Mines appeals a decision by the Kanawha County Circuit Court that West Virginia Code, 22-2-1, et seq., does not require preshift examinations by fire bosses of mine beltway entries and beltways.

“Statutes which relate to the same persons or things, or to the same class of persons or things, or statutes which have a common purpose will be regarded in pari materia to assume recognition and implementation of the legislative intent. ...” Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975), Syllabus Point 5.

Chapter 22 of the West Virginia Code regulates mining. The Department of Mines if mandated to “give prime consideration to the protection of the safety and health of persons employed within or at the mines of this State.” Code, 22-1-2.

The most instructive section is entitled “Safety inspection; removal of gases”:

It shall be the duty of the mine foreman, assistant mine foreman or fire boss to examine all working places under his supervision for hazards at least once every two hours during each coal-producing shift, or more often if necessary for safety. In all mines such examinations shall include tests with an approved detector for methane and oxygen deficiency and may also include tests with a permissible flame safety lamp. It shall also be his duty to remove as soon as possible after its discovery any accumulations of explosive or noxious gases in active workings, and where practicable, any accumulations of explosive or noxious gases in the worked out and abandoned portions of the mine. 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. Code, 22-2-14. (Emphasis added).

So it is the duty of the underground mine foreman - fire boss or his assistant

* to examine each mine within three hours prior to the beginning of a shift. “Mine” is defined at Code, 22-1-1(a)(6):

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. (Emphasis added.)

A shaft is a “vertical opening through the strata that is or may be used for the purpose of ventilation, drainage, and the hoisting and transportation of men and material, in connection with the mining of coal”, Code, 22-1-1(c)(9). A slope is “a plane or incline roadway, usually driven to a coal seam from the surface and used for the same purposes as a shaft,” Code, 22-1-1(c)(10). And a drift is defined as “a horizontal or approximately horizontal opening through the strata or in a coal seam and used for the same purposes as a shaft”, Code, 22-1-1(c)(3).

Mine beltways are ventilated underground areas of the mine where conveyor belts are located for the transportation of coal from its production situs to points outside the mine. Some belt conveyors transport men as well as coal. Code, 22-2-38(e). The entries are those areas where miners pass to go to the beltline or beltway, where supplies are deposited and frequently where miners take their meals. Beltways therefore are shafts, slopes or drifts, used for hoisting and transporting men and material, are parts of a mine, and must be preshift examined. Code, 22-2-14, supra.

Code, 22-2-70(b), reemphasizes that shafts and slopes, which we have indicated include beltway entries and beltways, must be inspected before each shift:

Mine examiner or certified person acting as such; duties generally; records open for inspection.-In all shafts and slopes within three hours immediately preceding the beginning of a work shift and before any workmen in such shift, other than those who may be designated to make the examinations, enter the underground areas of such shafts or slopes, a certified foreman or mine examiner, designated by the operator of such shaft or slope to do so, shall make an examination of such areas. Each person designated to make such examinations shall make tests with a permissible flame safety lamp for accumulations of methane and oxygen deficiency, and examine sides of shafts and ribs and roof of all slopes. Should he find a condition which he considers dangerous to persons, he shall place a conspicuous danger sign at all entrances to such places. He shall record the results of his examination with ink or indelible pencil in a book prescribed by the director of the department of mines, kept at a place on the surface designated by mine management. All records as prescribed herein shall be open for inspection by interested persons.

See also Code, 22-2-70c.

Inspections conducted by certified belt examiners during shifts, Code, 22-2-39(e), are not comparable to nor substitutes for preshift safety examinations by fire bosses — those examinations being nonassignable. Algoma Coal & Coke Co. v. Alexander, 136 W.Va. 521, 66 S.E.2d 201 (1950); Op. Atty. Gen., May 5, 1978; Code, 22-2-13, 14, 16, 17, 21, 22 and 23. The existence of other safety checks does not eliminate the need for preshift examinations. See also Code, 22-1-13; 22-1-15; 22-2-8; 22-2-13; 22-2-27; 22-2-37(5)(u); 22-2-38(m); 22-2-39(e) and (i); 22-2-70(b); 22-2-70c; 22-2-73, all providing for inspections and examinations.

To promote safety in a highly dangerous business, the Legislature has provided nonexclusive, multiple examinations for potential safety risks, one of which is preshift examination of the entire mine.

Reversed.

The Code requires a “mine foreman, assistant mine foreman or fire boss” to examine each mine, but effective July, 1974, that was changed to “underground mine foreman — fire boss” or “assistant underground mine foreman — fire boss.” Code, 22-2-7(e).