H. B. 2042
(By Delegate Frederick)
[Introduced February 14, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one hundred one, three hundred
eight and three hundred nine, article two-a, chapter
twenty-two-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to the
establishment of standards and procedures for the use and
maintenance of diesel-powered equipment in underground coal
mines; extending the time for the commission to promulgate
rules and eliminating the arbitration process.
Be it enacted by the Legislature of West Virginia:
That sections one hundred one, three hundred eight and three
hundred nine, article two-a,
chapter twenty-two-a of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 2A. USE OF DIESEL-POWERED EQUIPMENT IN UNDERGROUND COAL
MINES.
PART I. GENERAL PROVISIONS.
§22A-2A-101. Use of diesel-powered equipment authorized.
Diesel-powered equipment for use in underground coal mines may
only be approved, operated, and maintained in accordance with
rules, requirements and standards established pursuant to this
article. Diesel-powered equipment
shall may not be used in
underground coal mines until the West Virginia diesel equipment
commission promulgates its initial rules, requirements and
standards governing the operation of diesel equipment in
underground coal mines,
or establishes appropriate controls and
conditions on a site-specific basis in accordance with section
three hundred nine and subsection (b), section three hundred ten of
this article for using such equipment.
§22A-2A-308. Promulgation of initial rules by the commission.
(a) The West Virginia diesel equipment commission shall
prepare and adopt the initial rules for the operation of diesel
equipment in underground coal mines in this state. In preparing
and adopting initial rules, the commission shall consider the
highest achievable measures of protection for miners' health and
safety through available technology, engineering controls and
performance requirements, and shall further consider the cost,
availability, adaptability and suitability of any available
technology, engineering controls and performance requirements as
they relate to the use of diesel equipment in underground coal
mines.
Authorization for the commission to establish the initial
rules shall cease to exist after the thirty-first day of March, one
thousand nine hundred ninety-eight, except that the commission shall, if necessary, promulgate initial rules following a decision
made by the board of arbitrators pursuant to section three hundred
nine of this article.
(b) In promulgating the initial rules pursuant to subsection
(a) of this section, the commission shall follow the procedures set
forth in article three, chapter twenty-nine-a of this code that are
prescribed for an agency proposing a legislative rule, to the point
where an agency would approve a rule for submission to the
Legislature. At that point, the commission shall proceed to final
adoption of the initial rules and file a notice of the final
adoption in the state register and with the legislative rule-making
review committee. Upon final adoption by the commission, the
initial rules are thereby promulgated and have the effect of law
without further action by the commission or the Legislature. The
initial rules shall be published in the code of state rules and
continue in effect until modified or superseded in accordance with
the provisions of this article.
§22A-2A-309. Commission may consider and approve petition prior
to promulgating rules.
(a) If the commission fails to finally adopt its initial rules
before the first day of April, one thousand nine hundred ninety-
eight, the members who represent the viewpoint or interests of coal
operators and the members who represent the viewpoint or interests
of working miners shall each prepare a final draft of proposed
initial rules, which drafts shall be considered the "last best
offer" by each group of members. Thereafter, the matters in controversy which the commission is unable to resolve shall be
submitted to arbitration as soon as is practicable.
(b) The board of appeals established and continued pursuant to
the provisions of article five of this chapter shall begin the
selection of arbitrators by contacting the alternative dispute
resolution department of the federal mediation and conciliation
service to obtain a roster of the names of fifteen persons who are
willing to serve as neutral members of a special subcommittee of
the board of appeals that will function as a board of arbitration.
The board of appeals shall request that the federal mediation and
conciliation service, in compiling the roster, consider experience,
training, affiliations, actual or potential conflicts of interest
and other matters when selecting persons who may serve as neutral
and independent arbitrators. From the roster of fifteen persons so
compiled, the board of appeals shall draw five names by lot. The
persons drawn shall comprise the board of arbitration, and they are
empowered to resolve all outstanding issues that prevent final
adoption of initial rules by the diesel equipment commission.
(c) In the event that an arbitrator shall die, or refuse to
act or become incapable of acting as an arbitrator before the
matters pending before the board of arbitration are concluded, then
the remaining arbitrators shall appoint another person from the
roster of available persons to be an arbitrator in place of the
arbitrator who no longer continues to act.
(d) Each arbitrator shall be compensated at a per diem rate of
two hundred twenty-five dollars per day for each day or portion thereof engaged in the discharge of official duties. Each member
of the commission shall be paid the same expense reimbursement as
is paid to members of the Legislature for their interim duties as
recommended by the citizens legislative compensation commission and
authorized by law. No reimbursement for expenses shall be made
except upon an itemized account, properly certified by the
arbitrators. All reimbursement for expenses shall be paid out of
the state treasury upon a requisition on the state auditor.
(e) On the fifth day of January, one thousand nine hundred
ninety-nine, the board of arbitrators shall resolve issues
presented by the proposed drafts drawn up by the members of the
commission. Only matters in controversy may be addressed by the
board of arbitration. Arbitration is conditioned by limiting the
range of outcomes to a choice between the positions submitted by
each opposing group within the commission as their "last best
offer." As to each issue raised by the proposed drafts, the board
of arbitration shall adopt a position advanced by one of the member
groups and shall have no authority to compromise the positions or
substitute an alternative position. In making its decisions, the
board of arbitrators shall consider the highest achievable measures
of protection for miners' health and safety through available
technology, engineering controls and performance requirements, and
shall further consider the cost, availability, adaptability and
suitability of any available technology, engineering controls and
performance requirements as they relate to the use of diesel
equipment in underground coal mines. When the board of arbitration reaches agreement on a proposed rule, at the conclusion of its work
the board of arbitration shall transmit a report containing the
proposed rule to the commission, the president of the Senate and
the speaker of the House of Delegates. The board of arbitration may
include in its report any other information, recommendations, or
materials that the board of arbitration considers appropriate,
including suggested legislation. Any arbitrator may include as an
addendum to the report any additional information, recommendations,
or materials.
(f) The board of coal mine health and safety shall provide
appropriate administrative support to the board of arbitration,
including technical assistance.
(g) Within twenty-eight days following the resolution of all
issues by the board of arbitration, the commission shall adopt the
initial rules, fully incorporating the decision of the board of
arbitration. The commission shall file a notice of the final
adoption in the state register and with the legislative rule-making
review committee. The initial rules are thereby promulgated and
have the effect of law without further action by the commission or
the Legislature. The initial rules shall be published in the code
of state rules and continue in effect until modified or superseded
in accordance with the provisions of this article, or by act of the
Legislature.
The commission may consider and approve any petition from a
coal mine operator or miners to use diesel-powered equipment in
accordance with subsection (b), section three hundred ten, prior to such time that the commission promulgates initial rules.
NOTE: The purpose of this bill is to extend the period of time
for the WV Diesel Commission to promulgate rules governing the use
of diesel-powered equipment in underground mines and to authorize
the commission to consider and approve the use of such equipment
upon petition by an operator or miners.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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