H. B. 2737


(By Delegates Caputo, Butcher, Kuhn,
Tucker, Collins and Sparks)
[Introduced February 11, 1999; referred to the
Committee on Government Organization
then the Judiciary.]




A BILL to amend and reenact sections three and six, article six, chapter twenty-two-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to setting forth new provisions regarding the method and nomination of members of the board of coal mine health and safety and making state employees ineligible for such board.

Be it enacted by the Legislature of West Virginia:
That sections three and six, article six, 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 6. BOARD OF COAL MINE HEALTH AND SAFETY.
§22A-6-3. Board continued; membership; method of nomination and appointment; meetings; vacancies; quorum.

(a) The board of coal mine health and safety, heretofore established, is continued as provided by this article. The board consists of seven members who are residents of this state, and who are appointed as hereinafter specified in this section:
(1) The governor shall appoint one member to represent the viewpoint of those operators in this state whose individual aggregate production exceeds one million tons annually and one member to represent the viewpoint of those operators in this state whose individual aggregate production is less than one million tons annually, which tonnage includes tonnage produced by affiliated, parent and subsidiary companies and tonnage produced by companies which have a common director or directors, shareholder or shareholders, owner or owners. When such members are to be appointed, the governor may request from the major trade association representing operators in this state a list of three nominees for each such position on the board. All such nominees shall be persons with special experience and competence in coal mine health and safety. There shall be submitted with such list a summary of the qualifications of each nominee. If the full lists of nominees are submitted in accordance with the provisions of this subdivision, the governor shall make the appointments from the persons so nominated. For purposes of this subdivision, the major trade association representing operators in this state is that association which represents operators accounting for over one half of the coal produced in mines in this state in the year prior to the year in which the appointment is to be made.
(2) The governor shall appoint two members who can reasonably be expected to represent the viewpoint of the working miners of this state. If the major employee organization representing coal miners in this state is divided into administrative districts, such members shall not be from the same administrative district. The highest ranking official within the major employee organization representing coal miners within this state shall, upon request by the governor, submit a list of three nominees for each such position on the board: Provided, That if the major employee organization representing coal miners in this state is divided into administrative districts, and if there are two vacancies to be filled in accordance with the provisions of this subdivision, not more than two persons on each list of three nominees shall be from the same administrative district and at least three districts shall be represented on the two lists submitted, and if there is one vacancy to be filled, no names shall be submitted of persons from the same administrative district already represented on the board. Said nominees shall have a background in coal mine health and safety, and shall at the time of their appointment be employed in a position which involves the protection of health and safety of miners. There shall be submitted with such list a summary of the qualifications of each nominee. If the full lists of nominees are submitted in accordance with the provisions of this subdivision, the governor shall make appointments from the persons so nominated.
(3) The governor shall appoint one public member who is professionally qualified in the field of occupational health and safety and who is: (A) An employee of the institute of labor studies at West Virginia University; or (B) a person who is engaged in or who has broad experience in occupational health and safety from the perspective of the worker. Such nominee shall have technical experience in occupational health and safety or education and experience in such field: Provided, That the nominee shall not have been, prior to appointment to the board, employed by a mining or industrial business entity in a managerial or supervisory position, or shall not have been employed by the major employee organization representing coal miners in this state, or shall not have been a miner. Employees of the state of West Virginia are disqualified from holding this position. The highest ranking official within the largest employee organization representing workers within this state shall, upon request by the governor, submit a list of three nominees for such position on the board. There shall be submitted with such list a summary of the qualifications of each nominee. If the full list of nominees are submitted in accordance with the provisions of this subdivision, the governor shall make appointments from the persons so nominated.
(4) The governor shall appoint one public member who is professionally qualified in the field of occupational health and safety and who has a degree in engineering or industrial safety and a minimum of five years experience in the field of industrial safety engaged in constructing, designing, developing or administering safety programs: Provided, That the nominee has not been, prior to appointment to the board, employed by a mining business entity in a managerial or supervisory position or has not been employed by the major employee organization representing coal miners in this state, or has not been a miner. Employees of the state of West Virginia are disqualified from holding this position.
(5) All appointments made by the governor under the provisions of subdivisions (1), (2), (3) and (4) of this subsection shall be with the advice and consent of the Senate.
(6) The seventh member of the board is the secretary of the department of commerce, labor and environmental resources, or his or her designee, who serves as chair of the board. The director shall furnish to the board such secretarial, clerical, technical, research and other services as are necessary to the conduct of the business of the board, not otherwise furnished by the board.
(b) Members serving on the board on the effective date of this article may continue to serve until the expiration of their terms. Thereafter, members shall be nominated and appointed in the manner provided for in this section and shall serve for a term of three years. Members are eligible for reappointment.
(c) The governor shall appoint a health and safety administrator, subject to the approval of a majority of the four members of the board identified in subdivisions (1) and (2), subsection (a) of this article, in accordance with the provisions of section six of this article, who shall certify all official records of the board. The health and safety administrator shall be a full-time officer of the board of coal mine health and safety with the duties provided for in section six of this article. The health and safety administrator shall have such education and experience as the governor deems necessary to properly investigate areas of concern to the board in the development of rules governing mine health and safety. The governor shall appoint as health and safety administrator a person who has an independent and impartial viewpoint on issues involving mine safety. The health and safety administrator shall be a person who has not been during the two years immediately preceding appointment, and is not during his or her term, an officer, trustee, director, substantial shareholder or employee of any coal operator, or an employee or officer of an employee organization or a spouse of any such person. The health and safety administrator shall have the expertise to draft proposed rules and shall prepare such rules as are required by this code and on such other areas as will improve coal mine health and safety.
(d) The board shall meet at least once during each calendar month, or more often as may be necessary, and at other times upon the call of the chair, or upon the request of any three members of the board. Under the direction of the board, the health and safety administrator shall prepare an agenda for each board meeting giving priority to the promulgation of rules as may be required from time to time by this code, and as may be required to improve coal mine health and safety. The health and safety administrator shall provide each member of the board with notice of the meeting and the agenda as far in advance of the meeting as practical, but in any event, at least five days prior thereto. No meeting of the board shall be conducted unless said notice and agenda are given to the board members at least five days in advance, as provided herein, except in cases of emergency, as declared by the chair, in which event members shall be notified of the board meeting and the agenda in a manner to be determined by the chair: Provided, That upon agreement of a majority of the quorum present, any scheduled meeting may be ordered recessed to another day certain without further notice of additional agenda.
When proposed rules are to be finally adopted by the board, copies of such proposed rules shall be delivered to members not less than five days before the meeting at which such action is to be taken. If not so delivered, any final adoption or rejection of rules shall be considered on the second day of a meeting of the board held on two consecutive days, except that by the concurrence of at least four members of the board, the board may suspend this rule of procedure and proceed immediately to the consideration of final adoption or rejection of rules. When a member fails to appear at three consecutive meetings of the board or at one half of the meetings held during a one-year period, the health and safety administrator shall notify the member and the governor of such fact. Such member shall be removed by the governor unless good cause for absences is shown.
(e) Whenever a vacancy on the board occurs, nominations and appointments shall be made in the manner prescribed in this section: Provided, That in the case of an appointment to fill a vacancy, nominations of three persons for each such vacancy shall be requested by and submitted to the governor within thirty days after the vacancy occurs by the major trade association or major employee organization, if any, which nominated the person whose seat on the board is vacant. The vacancy shall be filled by the governor within thirty days of his receipt of the list of nominations.
(f) A quorum of the board is five members which shall include the secretary of the department of commerce, labor and environmental resources, at least one member representing the viewpoint of operators and at least one member representing the viewpoint of the working miners, and the board may act officially by a majority of those members who are present.
§22A-6-6. Health and safety administrator; qualifications; duties; employees; compensation.

(a) The governor shall appoint the health and safety administrator of the board for a term of employment of one year. The appointment is subject to the approval of the majority vote of the four members of the board identified in subdivisions (1) and (2), subsection (a), article three of this chapter. The health and safety administrator shall be entitled to have his or her contract of employment renewed on an annual basis except where such renewal is denied for cause: Provided, That the governor has the power at any time to remove the health and safety administrator for misfeasance, malfeasance or nonfeasance: Provided, however, That the board has the power to remove the health and safety administrator without cause upon the concurrence of five members of the board.
(b) The health and safety administrator shall work at the direction of the board, independently of the director of the office of miners' health, safety and training and has such authority and shall perform such duties as may be required or necessary to effectuate this article.
(c) In addition to the health and safety administrator, there shall be such other research employees hired by the health and safety administrator as the board determines to be necessary. The health and safety administrator shall provide supervision and direction to the other research employees of the board in the performance of their duties.
(d) The employees of the board shall be compensated at rates determined by the board. The salary of the health and safety administrator shall be fixed by the governor: Provided, That the salary of the health and safety administrator shall not be reduced during his or her annual term of employment or upon the renewal of his or her contract for an additional term. Such salary shall be fixed for any renewed term at least ninety days before the commencement thereof.
(e) Appropriations for the salaries of the health and safety administrator and any other employees of the board and for necessary office and operating expenses shall be made to a budget account hereby established for those purposes in the general revenue fund. Such account shall be separate from any accounts or appropriations for the office of miners' health, safety and training.
(f) The health and safety administrator shall review all coal mining fatalities and major causes of injuries as mandated by section four of this article. An analysis of such fatalities and major causes of injuries shall be prepared for consideration by the board within ninety days of the occurrence of the accident.
(g) At the direction of the board, the administrator shall also conduct an annual study of occupational health issues relating to employment in and around coal mines of this state and submit a report to the board with findings and proposals to address the issues raised in such study. The administrator is responsible for preparing the annual reports required by subsection (e), section four of this article and section nine of this article.


NOTE: The purpose of this bill is to set forth new provisions regarding the method and nomination of members of the board of coal mine health and safety and making state employees ineligible for such board.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.