Virginia Dept. of Labor and Industry v. Westmoreland Coal Co., 831786

• Decision Date: 06 March 1987
• Docket Number: No. 831786,831786
• Citation: 233 Va. 97,353 S.E.2d 758
• Parties: VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY v. WESTMORELAND COAL COMPANY. Record
• Court: Virginia Supreme Court

Page 758

353 S.E.2d 758

233 Va. 97

VIRGINIA DEPARTMENT OF LABOR AND INDUSTRY v. WESTMORELAND COAL COMPANY.

Record No. 831786.

Supreme Court of Virginia.

March 6, 1987.

John B. Purcell, Jr., Asst. Atty. Gen., Richmond (Gerald L. Baliles, Atty. Gen., John S. Morris, III, Asst. Atty. Gen., Richmond, on briefs), for appellant.

Scott L. Messmore, Big Stone Gap, (F. Thomas Rubenstein, Thomas C. Means, Crowell & Moring, Washington, D.C., on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

In this appeal, we must interpret Code § 45.1-81(a), a mine safety statute relating to communications that provides:

Telephone service or equivalent two-way communication facilities shall be provided between the top and each landing of main shafts and slopes. A telephone or equivalent two-way communication facility shall be located on the surface within five hundred feet of all main portals, and shall be installed either in a building or in a box-like structure designed to protect the facilities from damage by inclement weather. At least one of these communication facilities shall be at a location where a responsible person who is always on duty when men are underground can hear the facility and respond immediately in the event of an emergency.

Westmoreland Coal Company (Westmoreland) operates two coal mines, "Wentz No. 1" and "Wentz B." The main portals of the two mines are approximately 1700 feet apart. Relying upon federal requirements and Code § 45.1-81(a) as it was interpreted by an Attorney General of Virginia in 1981 (the 1981 opinion), Westmoreland installed a communications system for its mines by locating a telephone within 500 feet of the main portal of Wentz No. 1 and another telephone within 500 feet of the main portal of Wentz B. A larger, better equipped central communications facility is located at Wentz No. 1 main portal. A "responsible person" mans this facility 24 hours per day.

Another Attorney General rendered a second opinion in 1982 (the 1982 opinion) overruling the 1981 opinion. His interpretation of Code § 45.1-81(a) required Westmoreland to maintain a manned facility within 500 feet of the main portal of each mine. As a consequence of the 1982 opinion, Westmoreland brought a declaratory judgment proceeding seeking judicial interpretation of the statute.

The trial court ruled that Westmoreland's communications system complied with Code § 45.1-81(a). It found that Westmoreland maintains a communication facility located within 500 feet of the main portal of each mine and that the Wentz No. 1 communications system, manned 24 hours per day by a responsible person, serves as a central communications facility for both mines. The court rejected the contention of the Virginia Department of Labor and Industry (the Department) that the statute required Westmoreland to station an additional person at the Wentz B facility.

The trial court based its ruling on two independent grounds. First, it found that the General Assembly intended to adopt the federal interpretation of 30 C.F.R. § 75.1600-1, which contains language identical to that in Code § 45.1-81(a). Second, the trial court concluded that Westmoreland's communications system satisfies the plain meaning of Code § 45.1-81(a). The Department appeals.

First, we determine whether Code § 45.1-81(a) is clear and unambiguous. If so, the section's plain meaning must be accepted without resort to extrinsic evidence and the rules of construction. Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660, 662 (1982); Sanitation Commission v. Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819, 823 (1978).

The Department contends that Code § 45.1-81(a) is unambiguous and its plain language "requires that at all times when men are working underground a communication facility on the surface which is within 500 feet of a main portal of that mine must be manned by a responsible person." As authority for its contention that the plain meaning of Code § 45.1-81(a) supports its position, the Department relies upon the 1982 opinion, 1981-82 Va.Att'y Gen.Rep. 251. In the 1982 opinion, the Attorney General said that "[t]he term 'at least one of these facilities' refers to the facilities specified in the immediately next preceding sentence, i.e., those within 500 feet of the portal." Id. at 252. With no reference to the federal regulation or its interpretation, he concluded that "the manned facility must be one within 500 feet of the main portal to each mine." Id.

The Department also relies upon Walls v. Miller, 162 W.Va. 563, 251 S.E.2d 491 (1978), in which the Supreme Court of West Virginia applied W.Va. Code § 22-2-42(a) (1977), a statute almost identical to Code § 45.1-81(a). The facts in Walls, however, are quite different from those in the present case. In Walls, the coal company operated seven mines, and a responsible person was no closer than one mile to any of the main mine portals. Id. at 568-69, 251 S.E.2d at 496. Moreover, the opinion does not state whether the company maintained an interconnected communications system with a central communications facility or what effect such a system would have had on the decision. Thus, we do not know what the West Virginia Supreme Court would have held had it been presented with facts similar to those in the case at bar. The court did say, however, that:

The statutory mandate is plain and unambiguous and should be applied and not construed ... and we see no reason to infer that the Legislature did not mean exactly what it said, namely that there shall be a person within 500 feet of at least one main portal who is always on duty while men are working.

Id. at 569, 251 S.E.2d at 496. (Emphasis added.) ¹

Westmoreland, reaching a different conclusion, also contends that Code § 45.1-81(a) is unambiguous and that its communications system complies with the section's provisions. Westmoreland claims that the phrase "[a]t least one of these communication facilities" cannot refer to the one facility that the second sentence requires to be located within 500 feet of a main portal; otherwise the term "[a]t least one" is meaningless because "only one facility within 500 feet is required." (Emphasis in original.) Instead, according to Westmoreland, the phrase refers to the "communication facilities" required by the first sentence of Code § 45.1-81(a).

Westmoreland relies upon the construction placed on the section by the 1981 Attorney General opinion, 1980-81 Va.Att'y Gen.Rep. 245, and by federal agencies charged with enforcing mine safety laws. In the 1981 opinion, the Attorney General concluded that while Code § 45.1-81(a) requires the installation of a communication facility within 500 feet of all main portals, "[i]n reference to the placement of persons, the only requirement is that 'at least one of these [attended] facilities' be 'at a location' where a responsible individual can respond immediately in the event of an emergency." 1980-81 Va.Att'y Gen.Rep. at 246. Additionally, the Attorney General said:

The Department of Labor and Industry, Division of Mines and Quarries, adopted [the federal] interpretation after the enactment of § 45.1-81(a) and has enforced the statute in conformity with it.

... This conclusion is bolstered by the fact that the Department ... has consistently ruled that manned facilities which are over five hundred feet from a particular portal are in compliance with § 45.1-81 "81 so long as the attended facility is at a location where a responsible person can respond in the event of an emergency.

Id.

The trial court adopted Westmoreland's contention, agreeing with the interpretation given Code § 45.1-81(a) by the Attorney General in 1981 and by federal agencies responsible for mine safety. The court reached this conclusion "based solely on the interpretation of the language in 45.1-81(a)," stating that if the General Assembly had intended to require a person at each communication facility within 500 feet of a main portal, it "should have been specific and said so."

We conclude that Code § 45.1-81(a) is ambiguous because it is susceptible to more than one meaning. See Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). The divergent interpretations discussed above demonstrate the difficulty one encounters in trying to ascertain the statute's meaning. Because the section is ambiguous, we, like the trial court, must resort to extrinsic evidence and the rules of construction to determine legislative intent, "the paramount object of statutory construction." Vollin v. Arlington Co. Electoral Bd., 216 Va. 674, 678-79, 222 S.E.2d 793, 797 (1976).

In 1976, the General Assembly established the Coal Mine Health and Safety Commission (Safety Commission) to study coal mine health and safety. Senate Joint Resolution No. 63, Acts 1976, p. 1511. After conducting public hearings, the Safety Commission made certain findings and drafted proposed legislation to implement its findings. Two of its general findings are relevant to our inquiry:

A. It was agreed that many technical changes were necessary in order to conform State law with Federal mining requirements. Such changes may be found throughout the proposed Commission legislation.

....

E. It was agreed that many general safety rules should be codified in order to promote safety in the mines.

One of the Safety Commission's proposed changes related to mine communications systems. Code § 45.1-81(a), as it read at the time of the Study Commission's report, provided that:

Telephone service or equivalent two-way communication facilities shall be provided between the top and each landing of main shafts and slopes. Adequate communication systems shall be provided to other active sections of the mine.

The Safety Commission recommended that the second sentence of the section be deleted and replaced with the following language:

A telephone or equivalent two-way communication facility shall be located on the surface within five hundred feet of...