ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 53
(By Senators Anderson, Burnette, Chafin, Deem, Helmick, Jackson,
McKenzie, Ross and Sharpe)
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[Originating in the Committee on Energy, Industry and Mining;
reported March 22, 2001.]
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A BILL to amend and reenact sections one hundred one, three hundred
three, three hundred eight, three hundred nine and three
hundred ten, 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; general prohibition on
use of diesel equipment in underground mines; diesel equipment
commission; extending the time for the commission to
promulgate initial rules; eliminating the arbitration process;
providing for petition to commission for exemption from prohibition on diesel equipment; and granting authority to
commission to grant certain limited site-specific requests.
Be it enacted by the Legislature of West Virginia:
That sections one hundred one, three hundred three, three
hundred eight, three hundred nine and three hundred ten, 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:
Provided, That the diesel equipment commission may approve limited
site-specific requests for experimental and testing use of diesel-
powered equipment in underground coal mines and for the use of alternative diesel-related health and safety technologies and
methods consistent with the provisions of section three hundred ten
of this article.
§22A-2A-303. Appointment and terms of commission members.
(a) The members of the commission shall be appointed to
initial terms as follows:
(1) Two members shall serve for a term beginning on the first
day of May, one thousand nine hundred ninety-seven, and ending on
the thirtieth day of June, one thousand nine hundred ninety-nine;
(2) Two members shall serve for a term beginning on the first
day of May, one thousand nine hundred ninety-seven, and ending on
the thirtieth day of June, two thousand;
(3) Two members shall serve for a term beginning on the first
day of May, one thousand nine hundred ninety-seven, and ending on
the thirtieth day of June, two thousand one.
(b) Of the two members appointed under each of subdivisions
(1), (2) and (3), subsection (a) of this section, one shall be a
person who can reasonably be expected to represent the viewpoint or
interests of coal operators in this state and one shall be a person
who can reasonably be expected to represent the viewpoint or
interests of working miners in this state.
(c)
The initial term of each of the six members first appointed shall be designated by the governor. Members serving on
the commission on the effective date of the amendment of this
section may continue to serve until the expiration of their terms.
Thereafter, members shall be nominated and appointed in the manner
provided in this section and section three hundred four of this
article.
(d) After the initial appointments, all members shall be
appointed for terms of four years. Members
shall not serve more
than two terms of four years each. are eligible for reappointment.
§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. Final adoption of the initial rules may be
approved only upon a majority vote of all six members of the
commission. All six members must be present when a vote is taken.
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's authority to approve site-specific experimental testing prior to initial rules.
The commission is hereby authorized to approve limited site-
specific requests for experimental and testing use of diesel-
powered equipment in underground coal mines prior to promulgation
of initial rules in accordance with subsections (b), (c), (d), (e),
(f) and (g), section three hundred ten of this article. Final
approval of a site-specific request may be approved only upon a
majority vote of all six members of the commission. All six members
must be present when a vote is taken.
§22A-2A-310. Duties of commission following promulgation of
initial rules.
(a) After the promulgation of the initial rules, the
commission shall have as its primary duties the implementation of
this article and the evaluation and adoption of state of the art
technology and methods, reflected in engines and engine components,
emission control equipment and procedures, that when applied to
diesel-powered underground mining machinery shall reasonably reduce
or eliminate diesel exhaust emissions and enhance protections of
the health and safety of miners. The technology and methods
adopted by the commission shall have been demonstrated to be
reliable. In making a decision to adopt new technology and methods,
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. Any state of the art
technology or methods adopted by the commission shall not reduce or
compromise the level of health and safety protection of miners.
(b) Upon application of a coal mine operator, the commission
shall consider site-specific requests for the use of diesel
equipment in underground coal mines and for the use of alternative
diesel-related health and safety technologies and methods. The
commission's action on applications submitted under this subsection
shall be on a mine-by-mine basis. Upon receipt of a site-specific
application, the commission shall conduct an investigation, which
investigation shall include consultation with the mine operator and
the authorized representatives of the miners at the mine.
Authorized representatives of the miners shall include a mine
health and safety committee elected by miners at the mine, a person
or persons employed by an employee organization representing miners
at the mine or a person or persons authorized as the representative
or representatives of miners of the mine in accordance with MSHA regulations at 30 C.F.R. Pt. 40 (relating to representative of
miners). Where there is no authorized representative of the miners,
the commission shall consult with a reasonable number of miners at
the mine. Upon completion of the investigation, the commission may
approve the application for the site-specific request: Provided,
That an application for a site-specific request under this
subsection may be approved only upon a majority vote of all six
members of the commission. All six members must be present when a
vote is taken.
(1) Within one hundred eighty days of receipt of an
application for use of alternative technologies or methods, the
commission shall complete its investigation. The time period may
be extended with the consent of the applicant.
(2) The commission shall have thirty days in which to render
a final decision approving or rejecting the application.
(3) The commission members shall not approve an application
made under this section if, at the conclusion of the investigation,
the commission members have made a determination that the use of
the alternative technology or method will reduce or compromise the
level of health and safety protection of miners.
(4) The written approval of an application for the use of
alternative technologies or methods shall include the results of the commission's investigation and describe the specific conditions
of use for the alternative technology or method.
(5) The written decision to reject an application for the use
of alternative technologies or methods shall include the results of
the commission's investigation and shall outline in detail the
basis for the rejection.
(c) The commission shall establish conditions for the use of
diesel-powered equipment in shaft and slope construction operations
at coal mines.
(d) In performing its functions, the commission shall have
access to the services of the board of coal mine health and safety.
The board shall make clerical support and assistance available to
enable the commission to carry out its duties.
(e) Any action taken by the commission to either approve or
reject the use of an alternative technology or method, or establish
conditions under subsection (c) of this section, shall be final and
binding and not subject to further review except where a decision
by the commission may be deemed to be an abuse of discretion or
contrary to law. If any party affected by a decision of the
commission believes that the decision is an abuse of discretion or
contrary to law, that party may file a petition for review with the
circuit court of Kanawha County in accordance with the provisions of the administrative procedures act relating to judicial review of
governmental determinations. The court, in finding that any
decision made by the commission is an abuse of discretion or
contrary to law, shall vacate and, if appropriate, remand the case.
(f) The powers and duties of the commission shall be limited
to the matters regarding the use of diesel-powered equipment in
underground coal mines.
(g) Appropriations for the funding of the commission and to
effectuate the purposes of this article shall be made to a budget
account hereby established for that purpose in the general revenue
fund.
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