ENROLLED
H. B. 2890
(By Delegates Staton, Amores, Linch, Fleischauer,
Thomas, Kominar and Buchanan)
[Passed April 10, 1997; in effect from passage.]
AN ACT to amend and reenact section thirty-seven, article two,
chapter twenty-two-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to further
amend said chapter by adding thereto a new article,
designated article two-a, all relating to the establishment
of standards and procedures for the use and maintenance of
diesel-powered equipment in underground coal mines;
modifying the prohibition on underground equipment powered
by internal combustion engines; authorizing the use of
diesel-powered equipment; stating purpose and intent;
defining certain terms; creating the West Virginia diesel
equipment commission; establishing the qualifications and
eligibility of members of the commission; prescribing terms
of office for members; providing for nomination and
appointment of members; providing for removal of members;
providing for compensation and reimbursement for expenses;
defining a quorum of the commission and the necessary affirmative vote required for adoption of a measure;
providing for the promulgation of rules by the commission;
establishing an arbitration process to be followed in the
event the commission fails to adopt rules before the first
day of April, one thousand nine hundred ninety-eight;
describing the duties of the commission after the adoption
of initial rules; directing the promulgation of rules
requiring the monitoring and control of exhaust emissions
and establishing standards for allowable concentrations of
exhaust emissions; providing for approval of diesel power
package or diesel engine;
providing for approval of
exhaust
emissions control and conditioning systems and establishing
requirements and standards for
exhaust emissions control and
conditioning systems
; requiring monitoring and controlling
of emissions;
requiring monitoring and controlling of
exhaust gases; requiring values for minimum quantities of
ventilating air; requiring approval of diesel-powered
equipment and the attachment of an approval plate;
establishing standards for fuel and fuel storage facilities;
requiring rules governing the refueling of diesel-powered
equipment; providing for rules to govern where refueling may
take place; requiring rules governing fire suppression
systems for diesel powered equipment, fuel transportation
units and permanent underground diesel fuel storage facilities; regulating or prohibiting certain starting aids;
providing for fire and safety training; providing for
service and maintenance of diesel-powered equipment;
requiring training and qualification of persons working on
diesel-powered equipment; requiring on-shift examination of
equipment by the operator; providing for scheduled
maintenance; requiring on-board performance and maintenance
diagnostics systems; requiring periodic examination and
testing of diesel-powered equipment; providing for record- keeping as to all tests, examinations, maintenance or
repair; providing for rules to establish programs for
training, a certification process and refresher training.
Be it enacted by the Legislature of West Virginia:
That section thirty-seven, article two, chapter twenty-two-a of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that said chapter be further
amended by adding thereto a new article, designated article two-a,
all to read as follows:
ARTICLE 2. UNDERGROUND MINES.
§22A-2-37. Haulage roads and equipment; shelter holes; prohibited
practices; signals; inspection.
(a) The roadbed, rails, joints, switches, frogs and other
elements of all haulage roads shall be constructed, installed and
maintained in a manner consistent with speed and type of haulage operations being conducted to ensure safe operation. Where
transportation of personnel is exclusively by rail, track shall be
maintained to within five hundred feet of the nearest working face,
except that when any section is fully developed and being prepared
for retreating, then the distance of such maintenance can be
extended to eight hundred feet if a rubber tired vehicle is readily
available.
(b) Track switches, except room and entry development switches,
shall be provided with properly installed throws, bridle bars and
guard rails; switch throws and stands, where possible, shall be
placed on the clearance side.
(c) Haulage roads on entries shall have a
continuous, unobstructed clearance of at least twenty-four inches
from the farthest projection of any moving equipment on the
clearance side.
(d) On haulage roads where trolley lines are used, the
clearance shall be on the side opposite the trolley lines.
(e) On the trolley wire or "tight" side, there shall be at
least twelve inches of clearance from the farthest projection of
any moving equipment.
(f) Warning lights or reflective signs or tapes shall be
installed along haulage roads at locations of abrupt or sudden
changes in the overhead clearance.
(g) The clearance space on all haulage roads shall be kept free of loose rock, coal, supplies or other material: Provided, That not
more than twenty-four inches need be kept free of such
obstructions.
(h) Ample clearance shall be provided at all points where
supplies are loaded or unloaded along haulage roads or conveyors
which in no event shall be less than twenty-four inches.
(i) Shelter holes shall be provided along haulage entries.
Such shelter holes shall be spaced not more than one hundred feet
apart, except when variances are authorized by the director with
unanimous agreement of the mine safety and technical review
committee. Shelter holes shall be on the side of the entry
opposite the trolley wire except that shelter holes may be on the
trolley wire and feeder wire side if the trolley wire and feeder
wire are guarded in a manner approved by the director.
(j) Shelter holes shall be at least five feet in depth, not
more than four feet in width, and as high as the traveling space,
unless the director with unanimous agreement of the mine safety and
technical review committee grants a waiver
. Room necks and
crosscuts may be used as shelter holes even though their width
exceeds four feet.
(k) Shelter holes shall be kept clear of refuse and other
obstructions.
(l) Shelter holes shall be provided at switch throws and
manually operated permanent doors.
(m) No steam locomotive shall be used in mines where miners are
actually employed in the extraction of coal, but this shall not
prevent operation of a steam locomotive through any tunnel haulway
or part of a mine that is not in actual operation and producing
coal.
(n) Underground equipment powered by internal combustion
engines using petroleum products, alcohol, or any other compound
shall not be used in a coal mine, unless the equipment is diesel- powered equipment approved, operated and maintained as provided in
article two-a of this chapter.
(o) Locomotives, personnel carriers, mine cars, supply cars,
shuttle cars, and all other haulage equipment shall be maintained
in a safe operating condition. Each locomotive, personnel carrier,
barrier tractor and other related equipment shall be equipped with
a suitable lifting jack and handle. An audible warning device and
headlights shall be provided on each
locomotive and each shuttle car. All other mobile equipment, using
the face areas of the mine, shall be provided with a conspicuous
light or other approved device so as to reduce the possibility of
collision.
(p) No persons other than those necessary to operate a trip or
car shall ride on any loaded car or on the outside of any car.
Where pusher locomotives are not used, the locomotive operator
shall have an assistant to assist him in his duties.
(q) The pushing of trips, except for switching purposes, is
prohibited on main haulage roads: Provided, That nothing herein
shall prohibit the use of a pusher locomotive to assist the
locomotive pulling a trip. Motormen and trip riders shall use care
in handling locomotives and cars. It shall be their duty to see
that there is a conspicuous light on the front and rear of each
trip or train of cars when in motion: Provided, however, That trip
lights need not be used on cars being shifted to and from loading
machines, or on cars being handled at loading heads during
gathering operations at working faces. No person except the
operator or his assistant shall ride on locomotives or loaded cars.
An empty car or cars shall be used to provide a safe distance
between the locomotive and the material car when rail, pipe or long
timbers are being hauled. A safe clearance shall be maintained
between the end car or trips placed on side tracks and moving
traffic. On haulage roads the clearance point shall be marked with
an approved device.
(r) No motorman, trip rider or brakeman shall get on or off
cars, trips or locomotives while they are in motion, except that a
trip rider or brakeman may get on or off the rear end of a slowly
moving trip or the stirrup of a slowly moving locomotive to throw
a switch, align a derail or open or close a door.
(s) Flying or running switches and riding on the front bumper
of a car or locomotive are prohibited. Back poling shall be prohibited except with precaution to the nearest turning point (not
over eighty feet), or when going up extremely steep grades and then
only at slow speed. The operator of a shuttle car shall face in
the direction of travel except during the loading operation when he
shall face the loading machine.
(t) (1) A system of signals, methods or devices shall be used
to provide protection for trips, locomotives and other equipment
coming out onto tracks used by other equipment.
(2) In any coal mine where more than three hundred fifty tons
of coal are produced on any shift in each twenty-four hour period,
a dispatcher shall be on duty when there are movements of track
equipment underground, including time when there is no production
of coal. Such traffic shall move only at the direction of the
dispatcher.
(3) The dispatcher's only duty shall be to direct traffic:
Provided, That the dispatcher's duties may also include those of
the responsible person required by section forty-two of this
article: Provided, however, That the dispatcher may perform other
duties which do not interfere with his dispatching responsibilities
and do not require him to leave the dispatcher's station except as
approved by the mine safety and technical review committee.
(4) Any dispatcher's station shall be on the surface.
(5) All self-propelled track equipment shall be equipped with
two-way communications.
(u) Motormen shall inspect locomotives, and report any
mechanical defects found to the proper supervisor before a
locomotive is put in operation.
(v) A locomotive following another trip shall maintain a
distance of at least three hundred feet from the rear end of the
trip ahead, unless such locomotive is coupled to the trip ahead.
(w) Positive stop blocks or derails shall be installed on all
tracks near the top and at landings of shafts, slopes and surface
inclines. Positive-acting stop blocks or derails shall be used
where necessary to protect persons from danger of runaway haulage
equipment.
(x) Shuttle cars shall not be altered by the addition of
sideboards so as to inhibit the view of the operator.
(y) Mining equipment shall not be parked within fifteen feet of
a check curtain or fly curtain.
(z) All self-propelled track haulage equipment shall be
equipped with an emergency stop switch, self centering valves, or
other devices designed to de-energize the traction motor circuit in
the event of an emergency. All track mounted trolley equipment
shall be equipped with trolley pole swing limiters or other means
approved by the mine safety and technical review committee to
restrict movement of the trolley pole when it is disengaged from
the trolley wire. Battery powered mobile equipment shall have the
operating controls clearly marked to distinguish the forward and reverse positions.
ARTICLE 2A. USE OF DIESEL-POWERED EQUIPMENT IN UNDERGROUND
COAL
MINES.
Part 1. 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 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.
§22A-2A-102. Control of diesel safety and health hazards.
The purpose of this article is to reduce or eliminate the
inherent hazards of electric-powered equipment in underground coal
mines while recognizing that the introduction of an internal
combustion engine into that environment presents a different set of
safety and health risks for miners. The provisions of this article
are intended to provide an integrated approach to the control of
diesel safety and health hazards in underground coal mines.
Part 2. Definitions.
§22A-2A-201. Applicability of definitions.
(a) For the purposes of this article, the words or phrases
defined in this part 2 have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly
appears from the context.
(b) When used in this article, the words and phrases defined
in section two, article one of this chapter have the meaning
ascribed to them in that section. Those definitions are applicable
to this article unless a different meaning clearly appears from the
context in which the word or phrase is used in this article.
§22A-2A-202. Board defined.
"Board" means the board of coal mine health and safety
continued by section three, article six of this chapter.
§22A-2A-203. Certificate of approval defined.
"Certificate of approval" means a formal document issued by
MSHA stating that a complete assembly has met the requirements of
part 36, title thirty of the code of federal regulations, 30 C.F.R.
§ 36.1, et seq., for mobile diesel-powered transportation equipment
and authorizing the use and attachment of an official approval
plate so indicating.
§22A-2A-204. Commission defined.
"Commission" means the West Virginia diesel equipment
commission created under the provisions of section three hundred
one of this article.
§22A-2A-205. Diesel fuel tank defined.
"Diesel fuel tank" means a closed metal vessel specifically
designed for the storage or transport of diesel fuel.
§22A-2A-206. Diesel fuel transportation unit defined.
"Diesel fuel transportation unit" means a self-propelled or
portable wheeled vehicle used to transport a diesel fuel tank.
§22A-2A-207. Diesel engine defined.
"Diesel engine" means any compression ignition internal
combustion engine using the basic diesel cycle where combustion
results from the spraying of fuel into air heated by compression.
§22A-2A-208. Diesel power package defined.
"Diesel power package" means a diesel engine with an intake
system, exhaust system, and a safety shutdown system installed that
meets the specific requirements for MSHA approval of diesel power
packages intended for use in approved equipment in areas of
underground coal mines where electric equipment is required to be
permissible.
§22A-2A-209. Exhaust emission defined.
"Exhaust emission" means any substance emitted to the
atmosphere from the exhaust port of the combustion chamber of a
diesel engine.
§22A-2A-210. Exhaust emissions control and conditioning system
defined.
"Exhaust emissions control and conditioning system" means a
device or combination of devices that will collect and treat diesel
exhaust emissions at the exhaust port of the engine, and will
reduce the volume of, or eliminate
emissions of, diesel particulate matter, carbon monoxide and oxides of nitrogen in accordance with
the requirements and standards of the commission established in
accordance with the provisions of section four hundred three of
this article.
§22A-2A-211. MSHA defined.
"MSHA" means the mine safety and health administration of the
United States department of labor.
§22A-2A-212. Permanent underground diesel fuel storage facility
defined.
"Permanent underground diesel fuel storage facility" means a
facility designed and constructed to remain at one location for the
storage or dispensing of diesel fuel, which does not move as mining
progresses.
§22A-2A-213. Safety can defined.
"Safety can" means a metal container intended for storage,
transport or dispensing of diesel fuel, with a nominal capacity of
five gallons, listed or approved by a nationally recognized
independent testing laboratory.
§22A-2A-214. Temporary underground diesel fuel storage area
defined.
"Temporary underground diesel fuel storage area" means an area
of a mine provided for the short-term storage of diesel fuel in a
fuel transportation unit, which moves as mining progresses.
Part 3. West Virginia Diesel Equipment Commission.
§22A-2A-301. Creation of the West Virginia diesel equipment
commission.
The West Virginia diesel equipment commission, consisting of
six members, is hereby created in the office of miners' health,
safety and training of the bureau of commerce.
§22A-2A-302. Members of the commission; qualifications and
eligibility.
(a) Each member of the commission shall be a citizen of the
United States and a resident of the state of West Virginia.
(b) No member of the Legislature, or person holding any
elective or full-time appointive office in the federal, state, or
local government shall be eligible to serve as a member of the
commission.
§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) of subsection (a), 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.
(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.
§22A-2A-304. Nomination and appointment of members.
(a) Prior to the appointment of a person to the commission,
the governor shall request the nomination of a candidate for the
appointment. If the position is to be filled by a person who can
reasonably be expected to represent the viewpoint or interests of
underground coal operators in this state, the governor shall
request the nomination from the major trade association
representing underground coal operators in this state. If the
position is to be filled by a person who can reasonably be expected
to represent the viewpoint or interests of working miners in this
state, the governor shall request the nomination from the highest
ranking officer of the major employee organization representing coal miners in this state.
(b) The governor shall appoint a member to serve for the term
for which the person was nominated, and until his or her successor
has been nominated and appointed: Provided, That if a successor is
not appointed within one hundred twenty days after the expiration
of a member's term, a vacancy is deemed to exist. The governor may
reject a nomination and decline to appoint a nominee only if the
person does not have the qualifications, integrity and
responsibility necessary to enable the person to perform his or her
duties as a member of the commission.
(c) Appointments to fill vacancies on the commission shall be
for the unexpired term of the member to be replaced.
§22A-2A-305. Removal of members.
When a member fails to appear at three consecutive meetings of
the commission or at one half of the meetings held during a one- year period, any member of the commission may notify the member and
the governor of such fact. Such member shall be removed by the
governor unless good cause for absences is shown.
§22A-2A-306. Compensation of members; reimbursement for expenses.
Each member of the commission shall be paid the same
compensation and 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 for each
day or portion thereof engaged in the discharge of official duties. No reimbursement for expenses shall be made except upon an itemized
account, properly certified by the members of the commission. All
reimbursement for expenses shall be paid out of the state treasury
upon a requisition on the state auditor.
§22A-2A-307. Quorum; majority vote required.
A quorum of the commission consists of not less than two of
the members who represent the viewpoint or interests of coal
operators and two of the members who represent the viewpoint or
interests of working miners. A measure before the commission for
its consideration is adopted on the affirmative vote of any four of
the six members.
§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. Failure to promulgate initial rules; arbitration.
(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.
§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 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.
(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.
Part 4. Exhaust emission requirements for diesel power packages.
§22A-2A-401. General provisions relating to requirements for
exhaust emissions.
This part 4 is intended to control the potential health
hazards of diesel exhaust, by requiring that diesel-powered
machines be equipped with clean-burning engines, that exhaust emissions control and conditioning systems may be required on
diesel engines as specified by the commission, that exhaust
emissions be monitored and controlled and that standards be
established for the allowable concentrations of exhaust emissions
in a mine environment.
§22A-2A-402. Approval of diesel power package or diesel engine.
Every diesel power package or diesel engine used in
underground coal mining shall be approved by the West Virginia
diesel equipment commission when it complies with applicable
requirements, standards, and procedures established by rules of the
commission, and be certified or approved, as applicable, by MSHA
and maintained in accordance with MSHA certification or approval.
§22A-2A-403. Exhaust emissions control and conditioning systems.
(a) All exhaust emissions control and conditioning systems and
their component devices
shall be approved by the West Virginia
diesel equipment commission. Such approval requires compliance
with applicable standards and procedures established by rules of
the commission
for the use of the system or device in reducing or
eliminating diesel particulate matter, carbon monoxide and oxides
of nitrogen.
The rules of the commission shall require all exhaust
emissions control and conditioning systems to undergo an initial
series of laboratory tests, using test equipment requirements and
standard procedures approved by the commission for testing for gaseous and particulate emissions. The commission shall compile a
list of acceptable third-party laboratories where testing is
performed competently and reliable results are produced.
(b) Requirements and standards for exhaust emissions control
and conditioning systems include, but are not limited to, the
following:
(1) A minimum standard, stated as an average percentage, for
the reduction of diesel particulate matter emissions by a diesel
particulate matter filter or other comparably effective emissions
control device;
(2) A minimum standard, stated in parts per million, for the
reduction of emissions of undiluted carbon monoxide, using an
oxidation catalyst or other gaseous emissions control device;
(3) A minimum standard, stated in parts per million, for the
reduction of emissions of oxides of nitrogen, using advanced
control technology such as catalytic control technology or other
comparably effective control methods;
(4) Any additional requirements established by the rules of
the commission or MSHA regulations relating to requirements for
permissible mobile diesel-powered transportation equipment set
forth in part 36, title thirty of the code of federal regulations,
30 C.F.R. § 36.1, et seq.
§22A-2A-404. Emissions monitoring and control.
Rules of the commission shall establish procedures for monitoring and controlling emissions from diesel-powered equipment.
Such procedures shall include, but not be limited to, monitoring
and controlling activities to be performed by a qualified person.
§22A-2A-405. Exhaust gas monitoring and control.
(a) For monitoring and controlling exhaust gases, the rules of
the commission shall establish the maximum allowable ambient
concentration of exhaust gases in the mine atmosphere. Standards
for exhaust gases, stated in parts per million, shall be
established for carbon monoxide and oxides of nitrogen. The rules
shall establish the location in the mine at which the concentration
of these exhaust gases is to be measured, the frequency at which
measurements are to be made, and requirements prescribing the
sampling instruments to be used in the measurement of exhaust
gases.
(b) Rules of the commission shall establish the concentration
of exhaust gas, stated as a percentage of an exposure limit, that
when present will require changes to be made in the use of diesel- powered equipment or the methods of mine ventilation, or will
require other modifications in the mining process.
(c) Rules of the commission shall provide for the remedial
action to be taken if the concentration of any of the gases listed
in subsection (a) of this section exceeds the exposure limit.
(d) In addition to the other maintenance requirements required
by this article, rules of the commission shall provide for service, maintenance and tests which are specific to an engine's fuel
delivery system, timing or exhaust emissions control and
conditioning system.
Part 5. Ventilation.
§22A-2A-501. Ventilation.
(a) Rules of the commission shall establish values to be
maintained for the minimum quantities of ventilating air where
diesel-powered equipment is operated. The purpose of these rules
is to ensure that necessary minimum ventilating air quantity is
provided where diesel-powered equipment is operated.
(b) Rules of the commission shall require that each specific
model of diesel-powered equipment shall be approved before it is
taken underground. The rules shall provide that in addition to
requiring that each diesel engine have an assigned MSHA approval
number securely attached to the engine with the information
required by 30 C.F.R. §§ 7.90 and 7.105, the approval plate shall
also specify the minimum ventilating air quantity required by the
commission for the specific piece of diesel-powered equipment. The
rules shall provide that the minimum ventilating air quantity be
determined based on the amount of air necessary at all times to
maintain the exhaust emissions at levels not exceeding the exposure
limits established by the commission pursuant to section four
hundred six of this article.
(c) Rules of the commission shall require that the minimum quantities of air in any split where any individual unit of diesel- powered equipment is being operated shall be at least that
specified on the approval plate for that equipment. Air quantity
measurements to determine compliance with this requirement shall be
made at the individual unit of diesel-powered equipment.
(d) Rules of the commission shall establish the minimum
quantities of air required in any split when multiple units are
operated. Air quantity measurements to determine compliance with
this requirement shall be made at the most downwind unit of diesel- powered equipment that is being operated in that air split.
(e) Rules of the commission shall provide that minimum
quantities of air in any split where any diesel-powered equipment
is operated shall not be less than the minimum air quantities
established pursuant to subsections (a) and (b) of this section and
shall be specified in the mine diesel ventilation plan.
Part 6. Fuel.
§22A-2A-601. Specifications for fuel.
(a) The commission shall establish standards for fuel to be
used in diesel-powered equipment in underground coal mines. A
purpose of these standards is to require the use of low volatile
fuels that will lower diesel engine gaseous and particulate
emissions and will reduce equipment maintenance by limiting the
amount of sulfur in the fuel. Another purpose of the standards for
fuel is to reduce the risk of fire in underground mines by establishing a minimum flash point for the diesel fuel used.
(b) Rules of the commission shall require each coal mine using
diesel equipment underground to establish a quality control plan
for assuring that the diesel fuel used complies with the standards
established pursuant to this section. The rules shall also
establish a procedure under which each mine operator will provide
evidence that the diesel fuel used in diesel-powered equipment
underground meets the standards for fuel established by the
commission.
§22A-2A-602. Fuel storage facilities.
(a) The commission shall establish requirements for the safe
storage of diesel fuel underground so as to minimize the risks
associated with fire hazards in areas where diesel fuel is stored.
(b) (1) Rules of the commission shall either provide:
(A) That all stationary underground diesel fuel tanks are
prohibited; or
(B) That a stationary underground diesel fuel tank may only be
authorized through a petitioning process that permits a stationary
underground diesel fuel tank to be located in a permanent
underground diesel fuel storage facility, on a site-specific basis.
Stationary underground diesel fuel tanks may not be located in
temporary underground diesel fuel storage areas.
(c) Rules of the commission shall govern the transportation
and storage of diesel fuel in diesel fuel tanks and safety cans.
(d) Rules of the commission shall establish limits on the
total amount of diesel fuel that may be stored in each permanent
underground diesel fuel storage facility and in each temporary
underground diesel fuel storage area.
§22A-2A-603. Dispensing of diesel fuel.
Rules of the commission governing the refueling of diesel- powered equipment shall, at a minimum, comply with the provisions
of part 75 of the code of federal regulations dealing with the
dispensing of diesel fuel, set forth in 30 C.F.R. § 75.1905,
effective the twenty-fifth day of April, one thousand nine hundred
ninety seven.
§22A-2A-6054. Location of fueling.
(a) Rules of the commission shall require that fueling of
diesel-powered equipment is not to be conducted in the intake
escapeways unless the mine design and entry configuration make it
necessary. For those cases where fueling in the intake escapeways
is necessary, the rules shall establish a procedure whereby the
mine operator shall submit a plan for approval, outlining the
special safety precautions that will be taken to insure the
protection of miners. The plan shall specify a fixed location
where fueling will be conducted in the intake escapeway and all
other safety precautions that will be taken, which shall include an
examination of the area for spillage or fire by a qualified person.
(b) Rules of the commission shall require that at least one person, specially trained in the cleanup and disposal of diesel
fuel spills, shall be on duty at the mine when diesel-powered
equipment or mobile fuel transportation equipment is being used or
when any fueling of diesel-powered equipment is being conducted.
Part 7. Fire suppression.
§22A-2A-701. Fire suppression systems for diesel-powered
equipment and fuel
transportation units.
Rules of the commission governing fire suppression systems for
diesel-powered equipment and fuel transportation units shall, at a
minimum, comply with the provisions of part 75 of the code of
federal regulations dealing with fire suppression systems for
diesel-powered equipment and fuel transportation units, set forth
in 3O C.F.R. § 75.1911, effective the twenty-fifth day of April,
one thousand nine hundred ninety-seven.
§22A-2A-702. Fire Ssuppression for storage areas.
Rules of the commission governing fire suppression systems for
permanent underground diesel fuel storage facilities shall, at a
minimum, comply with the provisions of part 75 of the code of
federal regulations dealing with fire suppression systems for
permanent underground diesel fuel storage facilities, set forth in
30 C.F.R. § 75.1912, effective the twenty-fifth day of April, one
thousand nine hundred ninety-seven.
§22A-2A-703. Use of certain starting aids regulated or prohibited.
Rules of the commission shall regulate or prohibit the use of volatile or chemical starting aids.
§22A-2A-704. Fire and safety training.
(a) Rules of the commission shall provide for all underground
employees at the mine to receive special instruction related to
fighting fires involving diesel fuel. This training may be
included in annual refresher training under MSHA regulations set
forth in 30 C.F.R. Pt. 48 (relating to training and retraining of
miners), or included in the fire drills required under MSHA
regulations set forth in 30 C.F.R. § 75.1101.23 (relating to
program of instruction; location and use of fire fighting
equipment; location of escapeways, exits, and routes of travel;
evacuation procedures; fire drills).
(b) Rules of the commission shall provide for all miners to be
trained in precautions for safe and healthful handling and disposal
of diesel-powered equipment filters.
Part 8. Maintenance.
§22A-2A-801. Maintenance of diesel-powered equipment.
(a) Rules of the commission shall require diesel-powered
equipment to be maintained in an approved and safe condition or
removed from service. Failure of the mine operator to comply with
the maintenance requirements established by the board may result in
revocation of the commission's approval of the diesel-powered
equipment. The commission shall establish procedures for
appropriate notification to be given to the mine operator, requiring the submission, evaluation and implementation of a plan
to achieve and maintain compliance.
(b) Rules of the commission shall provide that service and
maintenance of diesel-powered equipment shall be performed
according to a specified routine maintenance schedule, on-board
performance and maintenance diagnostics readings, emissions test
results, and component manufacturer's recommendations.
§22A-2A-802. Training and qualification of persons working on
diesel-powered equipment.
(a) Rules of the commission shall require that all
maintenance, repairs, examinations and tests on diesel-powered
equipment shall be performed by a person who, at a minimum, is
trained and qualified in accordance with the provisions of part 75
of the code of federal regulations dealing with the training and
qualification of persons working on diesel powered equipment, as
set forth in 30 C.F.R. § 75.1915, effective the twenty-fifth day of
April, one thousand nine hundred ninety-seven.
(b) Rules of the commission shall require that the training
and qualification program and record made available for inspection
pursuant to the provisions of 30 C.F.R. § 75.1915(c) be made
available to the commission or its authorized representative.
§22A-2A-803. Examination of equipment by operator.
Rules of the commission shall require that mobile diesel- powered equipment that is to be used during a shift be visually examined by the equipment operator before being placed in
operation, and that equipment defects affecting safety be reported
promptly to the mine operator. Rules of the commission shall
specify the inspection procedures to be followed and the operating
conditions under which the examination is to be made. Rules of the
commission shall establish record-keeping requirements for such
visual examinations.
§22A-2A-804. Scheduled maintenance.
Rules of the commission shall establish the intervals at which
a qualified person will evaluate and interpret the results of tests
and examinations, perform maintenance and make all necessary
adjustments or repairs or remove the diesel-powered equipment from
service. The commission shall establish record-keeping requirements
for persons performing maintenance.
§22A-2A-805. On-board performance and maintenance diagnostics
systems.
Rules of the commission shall require that on-board engine
performance and maintenance diagnostics systems shall be capable of
continuously monitoring and giving read-outs. The diagnostics
system shall identify levels that exceed the engine or component
manufacturer's recommendation, standards established by the
commission or the applicable MSHA requirements.
§22A-2A-806. Diagnostic testing.
(a) The commission shall require periodic examination and testing of all diesel-powered equipment by a person trained and
qualified as required by rules of the commission.
(b) Rules of the commission shall prescribe the scope of the
examination and testing and the procedures to be followed, and the
rules requiring testing of undiluted exhaust emissions may exceed
the written standard operating procedures for such testing and
evaluation required by part 75 of the code of federal regulations,
set forth in 30 C.F.R. § 75.1915(g).
§22A-2A-807. Records.
(a) Rules of the commission shall provide:
(1) That a record be made of all tests, examinations and
maintenance and repairs of diesel-powered equipment;
(2) That the person performing the test, examination,
maintenance or repair certify by date, time, engine hour reading,
and signature that the test, examination, maintenance, or repair was
made;
(3) That records of tests and examinations include the
specific results of such tests and examinations;
(4) That records of maintenance and repairs include a
description of the work or service that was performed, and the
results of any subsequently required emissions testing.
(b) Rules of the commission shall specify the persons who are
required to countersign records of tests, examinations, maintenance
and repairs.
(c) Rules of the commission shall establish procedures and
time periods for the retention of records and their availability
for inspection by the commission and by miners and their
representatives.
Part 9. Training.
§22A-2A-901. Training and general requirements.
(a) Rules of the commission shall establish programs for
training equipment operators and members of the mine health and
safety committee. Training shall include, but not be limited to,
the following:
(1) Fundamentals of the operation of a diesel engine;
(2) Federal and state regulations governing their use of
diesel-powered equipment;
(3) The mine operator's rules for safe operation;
(4) Specific features of each piece of equipment; and
(5) Problem recognition.
(b) Required training shall include equipment specific, hands- on orientation given in an area of the mine where the equipment
will be operated. This orientation shall be specific to the type
and make of the diesel machine and shall be presented in small
groups.
(c) Rules of the commission shall establish a certification
process for qualifying equipment operators to operate a specific
type of diesel-powered equipment. An operator may be qualified to operate more than one type of equipment by completing additional
equipment-specific training covering differences specific to each
additional type of equipment.
(d) Rules of the commission shall require refresher training,
separate from that required by MSHA regulations at 30 C.F.R. Pt. 48
(relating to the training and retraining of miners), and annual
recertification.