H. B. 2807
(By Delegates Staton, Collins, Reed, Linch,
Tribett, Whitman and Manuel
(Originating in the House Committee on the Judiciary)
[March 31, 1993]
A BILL to amend article five, chapter twenty-two of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
two; and to amend and reenact section nineteen, article
one-a, chapter twenty-two-a of said code, all relating to
the powers and authority of the director of the office of
miners' health, safety and training; transferring certain
review functions of the director to the board of appeals;
authorizing the director to promulgate a rule setting forth
the procedure for assessing certain civil penalties; the
revision of such rule; and providing authority and
procedures for the director to pursue alternative methods of
enforcement of the imposition of civil penalties.
Be it enacted by the Legislature of West Virginia:
That article five, chapter twenty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section two;and that section nineteen, article one-a, chapter twenty-two-a of
said code be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 5. BOARD OF APPEALS.
§22-5-2. Powers transferred to the board of appeals.
(a) There are hereby transferred to the board of appeals
all functions of the director of the office of miners' health,
safety and training relating to the review of orders and notices
as set forth in section fifteen, article one-a, chapter
twenty-two-a.
(b) There are hereby transferred to the board of appeals
all functions of the director of the office of miners' health,
safety and training relating to the review of penalty assessments
as set forth in subdivision (3), subsection (a), section
nineteen, article one-a, chapter twenty-two-a of this code.
(c) Judicial review of decisions by the board of appeals
shall be available and conducted in the same fashion as set forth
in section seventeen, article one-a, chapter twenty-two-a of this
code.
CHAPTER 22A. MINES AND MINERALS.
ARTICLE 1A. ADMINISTRATION; ENFORCEMENT.
§22A-1A-19. Penalties.
(a)(1) Any operator of a coal mine in which a violation
occurs of any health or safety rule or regulation or who violates
any other provisions of this law, shall be assessed a civil
penalty by the
commissioner director under subdivision (3) of
this subsection, which penalty shall be not more than three
thousand dollars, for each such violation. Each such violationshall constitute a separate offense. In determining the amount
of the penalty, the
commissioner director shall consider the
operator's history of previous violations, the appropriateness of
such 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 thirtieth
day of June, one thousand nine hundred ninety-three, the director
shall promulgate as a rule the procedure for assessing such civil
penalties in effect as of the fifteenth day of January, one
thousand nine hundred ninety-three, without regard to the
provisions of chapter twenty-nine-a of this code:
Provided,
That
any revisions to such rules after this date shall be promulgated
as in the case of legislative rules in accordance with the
provisions of chapter twenty-nine-a of this code.
(2) Any miner who knowingly violates any health or safety
provision of this chapter or health or safety rule or regulation
promulgated pursuant to this chapter shall be subject to a civil
penalty assessed by this commissioner the director under
subdivision (3) of this subsection which penalty shall not be
more than two hundred fifty dollars for each occurrence of such
violation.
(3) A civil penalty shall be assessed by the commissioner
director only after the person charged with a violation under
this chapter or rule or regulation promulgated pursuant to this
chapter has been given an opportunity for a public hearing and
the commissioner director has determined, by a decision
incorporating his findings of fact therein, that a violation didoccur, and the amount of the penalty which is warranted, and
incorporating, when appropriate, an order therein requiring that
the penalty be paid. Any hearing under this section shall be of
record.
(4) (A) If the person against whom a civil penalty is
assessed fails to pay the penalty within the time prescribed in
such order, the commissioner director shall may file a petition
for enforcement of such 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 forthwith 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,
and thereupon the commissioner director shall certify and file in
such court the record upon which such order sought to be enforced
was issued. The court shall have jurisdiction to enter a
judgment enforcing, modifying, and enforcing as so modified, or
setting aside in whole or in part the order and decision of the
commissioner director or it may remand the proceedings to the
commissioner director for such further action as 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 eighteen of this article, and upon the request of the
respondent, such 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 commissioner may appear for and
represent him in any action to enforce an order assessing civil
penalties under this subdivision.
(B) In addition to the authority to file a petition for
enforcement, if an operator against whom a civil penalty is
assessed fails to pay the penalty within the time prescribed in
such order, the director shall issue an order requiring the
operator or its agent to cause immediately all persons to be
withdrawn from, and to be prohibited from entering, the mine from
which the penalties originated:
Provided,
That no order causing
withdrawal from, and prohibiting entry to, the mine shall issue
under this subsection unless the operator has been served with
notice, by the director or his authorized representative, by
certified mail, return receipt requested, advising the operator
of the unpaid penalty, and that at the end of sixty days from
service of the notice, an order causing withdrawal from, and
prohibiting entry to, the mine shall issue:
Provided, however,
That the operator to whom such notice is issued shall have thirty
days from receipt thereof to request, by certified mail, return
receipt requested, a public hearing as to whether the order
should issue. An order causing withdrawal from and prohibiting
entry to, the mine issued under this subsection shall remain in
effect until the unpaid penalty is paid in full.
(b) Any operator who knowingly violates a health or safety
provision of this chapter or health or safety rule or regulation
promulgated pursuant to this chapter, or knowingly violates or
fails or refuses to comply with any order issued under section
thirteen of this article, or any order incorporated in a finaldecision issued under this article, except an order incorporated
in a decision under subsection (a) of this section or subsection
(b), section twenty of this article, shall be assessed a civil
penalty by the commissioner director under subdivision (3),
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.
(c) Whenever a corporate operator knowingly violates a
health or safety provision of this chapter or health or safety
rules or regulations 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 of this article, any director,
officer or agent of such corporation who knowingly authorized,
ordered or carried out such violation, failure or refusal, shall
be 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, shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than five thousand dollars or
imprisoned in the county 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 certificationsheld by him under this chapter which certified him or authorized
him to direct other persons in coal mining by operation of law
and shall bar him from being issued any such license under this
chapter, except a miner's certification, for a period of not less
than one year or for such longer period as may be determined by
the commissioner 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 such equipment, who willfully misrepresents such
equipment as complying with the provisions of this law, or with
any specification or regulation of the commissioner director
applicable to such equipment, and which does not so comply, shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be subject to the same fine and imprisonment that may be imposed
upon a person under subsection (d) of this section.
(f) There is hereby created under the treasury of the state
of West Virginia a special health, safety and training fund. All
civil penalty assessments collected under section nineteen of
this article shall be collected by the commissioner 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 commissioner director and he is authorized
to expend the moneys in the fund for the administration of this
chapter and chapter twenty-two of this code.