H. B. 2079
(By Delegate Frederick)
[Introduced February 9, 2005; referred to the
Committee on Industry and Labor, Economic Development and
Small Business then the Judiciary.]
A BILL to amend §22A-1-21 of the code of West Virginia, 1931, as
amended,
relating to miners' health, safety and training;
penalties; and providing that miners fined under the
provisions of article one, are given the option of either
paying the assessment within the time prescribed in the order
or of completing a comprehensive training class dealing
specifically with the adverse health and safety consequences
resulting from the person's failure or refusal to comply with
the cited statute or rule.
Be it enacted by the Legislature of West Virginia:
That §22A-1-21 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.
§22A-1-21. Penalties.
(a) (1) Any operator of a coal mine in which a violation
occurs of any health or safety rule or who violates any other
provisions of this chapter shall be assessed a civil penalty by the
director under subdivision (3) of this subsection, which shall be
not more than three thousand dollars, for each violation, unless
the director determines that it is appropriate to impose a special
assessment for said violation, pursuant to the provisions of
subdivision (2), subsection (b) of this section. Each violation
constitutes a separate offense. In determining the amount of the
penalty, the director shall consider the operator's history of
previous violations, whether the operator was negligent, the
appropriateness of the penalty to the size of the business of the
operator charged, the gravity of the violation and the demonstrated
good faith of the operator charged in attempting to achieve rapid
compliance after notification of a violation. Not later than the
first day of June, two thousand two, the director shall promulgate
as a rule the procedure for assessing such civil penalties. This
rule will be in effect upon filing, without regard to the
provisions of chapter twenty-nine-a of this code.
(2) Any revisions to rules relating to the assessment of civil
penalties shall be proposed for promulgation as legislative rules
in accordance with the provisions of article three, chapter
twenty-nine-a of this code.
(3) Any miner who knowingly violates any health or safety provision of this chapter or health or safety rule promulgated
pursuant to this chapter is subject to a civil penalty assessed by
the director under subdivision (4) of this subsection which shall
not be more than two hundred fifty dollars for each occurrence of
the violation.
(4) A civil penalty under subdivision (1) or (2) of subsection
(a) of this section or subdivision (1) or (2) of subsection (b) of
this section shall be assessed by the director only after the
person charged with a violation under this chapter or rule
promulgated pursuant to this chapter has been given an opportunity
for a public hearing and the director has determined, by a decision
incorporating the director's findings of fact in the decision, that
a violation did occur and the amount of the penalty which is
warranted and incorporating, when appropriate, an order in the
decision requiring that the penalty be paid. Any hearing under
this section shall be of record.
(5) If the person against whom a civil penalty is assessed
fails to pay the penalty within the time prescribed in the order,
the director may file a petition for enforcement of the order in
any appropriate circuit court. The petition shall designate the
person against whom the order is sought to be enforced as the
respondent. A copy of the petition shall immediately be sent by
certified mail, return receipt requested, to the respondent and to
the representative of the miners at the affected mine or the operator, as the case may be. The director shall certify and file
in the court the record upon which the order sought to be enforced
was issued. The court has jurisdiction to enter a judgment
enforcing, modifying and enforcing as modified, or setting aside,
in whole or in part, the order and decision of the director or it
may remand the proceedings to the director for any further action
it may direct. The court shall consider and determine de novo all
relevant issues, except issues of fact which were or could have
been litigated in review proceedings before a circuit court under
section twenty of this article and, upon the request of the
respondent, those issues of fact which are in dispute shall be
submitted to a jury. On the basis of the jury's findings the court
shall determine the amount of the penalty to be imposed. Subject
to the direction and control of the attorney general, attorneys
appointed for the director may appear for and represent the
director in any action to enforce an order assessing civil
penalties under this subdivision.
Any miner assessed a civil penalty for violating any health or
safety provision of this code or health or safety rule promulgated
pursuant to this code shall be given the option of either paying
the assessment within the time prescribed in the order or of
completing a comprehensive training class dealing specifically with
the adverse health and safety consequences resulting from the
person's failure or refusal to comply with the cited statute or rule. The extent of the training class shall correspond to the
gravity of the violation, as well as any history of previous
violations, but in no case may the duration of the training class
exceed eight hours for each cited occurrence, and in no case may
the mine operator be required to compensate the cited individual
for the time required to complete the training class.
(b) (1) Any operator who knowingly violates a health or safety
provision of this chapter or health or safety rule promulgated
pursuant to this chapter, or knowingly violates or fails or refuses
to comply with any order issued under section fifteen of this
article, or any order incorporated in a final decision issued under
this article, except an order incorporated in a decision under
subsection (a) of this section or subsection (b), section
twenty-two of this article, shall be assessed a civil penalty by
the director under subdivision (5), subsection (a) of this section
of not more than five thousand dollars and for a second or
subsequent violation assessed a civil penalty of not more than ten
thousand dollars, unless the director determines that it is
appropriate to impose a special assessment for said violation,
pursuant to the provisions of subdivision (2) of this subsection.
(2) In lieu of imposing a civil penalty pursuant to the
provisions of subsection (a) of this section or subdivision (1) of
this subsection, the director may impose a special assessment if an
operator violates a health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter and the
violation is of serious nature and involves one or more of the
following by the operator:
(A) Violations involving fatalities and serious injuries;
(B) Failure or refusal to comply with any order issued under
section fifteen of this article;
(C) Operation of a mine in the face of a closure order;
(D) Violations involving an imminent danger;
(E) Violations involving an extraordinarily high degree of
negligence or gravity or other unique aggravating circumstances; or
(F) A discrimination violation under section twenty-two of
this article.
In situations in which the director determines that there are
factors present which would make it appropriate to impose a special
assessment, the director shall assess a civil penalty of at least
five thousand dollars and of not more than ten thousand dollars.
(c) Whenever a corporate operator knowingly violates a health
or safety provision of this chapter or health or safety rules
promulgated pursuant to this chapter, or knowingly violates or
fails or refuses to comply with any order issued under this law or
any order incorporated in a final decision issued under this law,
except an order incorporated in a decision issued under subsection
(a) of this section or subsection (b), section twenty-two of this
article, any director, officer or agent of the corporation who knowingly authorized, ordered or carried out the violation, failure
or refusal is subject to the same civil penalties that may be
imposed upon a person under subsections (a) and (b) of this
section.
(d) Whoever knowingly makes any false statement,
representation or certification in any application, record, report,
plan or other document filed or required to be maintained pursuant
to this law or any order or decision issued under this law is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than five thousand dollars or imprisoned in the
county or regional jail not more than six months, or both fined and
imprisoned. The conviction of any person under this subsection
shall result in the revocation of any certifications held by the
person under this chapter which certified or authorized the person
to direct other persons in coal mining by operation of law and bars
that person from being issued any license under this chapter,
except a miner's certification, for a period of not less than one
year or for a longer period as may be determined by the director.
(e) Whoever willfully distributes, sells, offers for sale,
introduces or delivers in commerce any equipment for use in a coal
mine, including, but not limited to, components and accessories of
the equipment, who willfully misrepresents the equipment as
complying with the provisions of this law, or with any
specification or rule of the director applicable to the equipment, and which does not comply with the law, specification or rule, is
guilty of a misdemeanor and, upon conviction thereof, is subject to
the same fine and imprisonment that may be imposed upon a person
under subsection (d) of this section.
(f) There is created in the treasury of the state of West
Virginia a special health, safety and training fund. All civil
penalty assessments collected under this section shall be collected
by the director and deposited with the treasurer of the state of
West Virginia to the credit of the special health, safety and
training fund. The fund shall be used by the director who is
authorized to expend the moneys in the fund for the administration
of this chapter.
NOTE: The purpose of this bill is to discourage nonpayment of
individual personal assessments levied for noncompliance with
current mining statutes and rules by permitting assessed
individuals the opportunity to either pay the penalty within the
prescribed time or to complete a training class in lieu thereof.
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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