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House Bill 4288 History
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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4288
(By Delegates Martin, Varner, Kuhn,
Warner, Collins and Walters)
[Passed March 14, 1998; in effect from passage.]
AN ACT to amend and reenact section twenty-one, article one,
chapter twenty-two-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend and
reenact section sixty-three, article two of said chapter, all
relating to the office of miners' health, safety and training;
fees
for certificate of approval and permits; providing that
the fees collected for certificates of approval and permits be
placed in the miners' health, safety and training fund;
providing for expenditure of moneys placed in the fund; civil
penalties assessed on operators of coal mines for health and
safety rules; abolishing the special health, safety and
training fund; providing that all civil penalties collected be
deposited with the state treasurer; and removing the spending
authority of the director of the West Virginia office of
miners' health, safety and training for these funds.
Be it enacted by the Legislature of West Virginia:
That
section twenty-one, article one, chapter twenty-two-a of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section sixty-three,
article two of said chapter
be amended and reenacted, all 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. Each
violation constitutes a separate offense. In determining the
amount of the penalty, the director shall consider the operator's
history of previous violations, 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. 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.
(2) 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 (3) of this subsection which penalty
shall not be more than two hundred fifty dollars for each
occurrence of the violation.
(3) A civil penalty 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.
(4) 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 such order sought to be enforced was issued. The court has 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 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.
(b) 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 (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
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 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 such 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) (1) 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 section twenty-one of this
article 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.
(2) After the thirtieth day of June, one thousand nine hundred ninety-eight, the special health, safety and training fund is
abolished and any balances remaining in the fund shall be deposited
into the state general revenue fund. On and after the first day of
July, one thousand nine hundred ninety-eight, all civil penalty
assessments collected under section twenty-one of this article
shall be collected by the director and paid to the state treasurer
for deposit into the state general revenue fund.
ARTICLE 2. UNDERGROUND MINES
§22A-2-63. No mine to be opened or reopened without prior
approval of the director of the office of miners'
health, safety and training; certificate of
approval; approval fees; extension of certificate of
approval; certificates of approval not transferable;
section to be printed on certificates of approval.
(a) No mine may be opened or reopened unless prior approval
has been obtained from the director of the office of miners'
health, safety and training. The director may not unreasonably
withhold approval. The operator shall pay a fee of one hundred
dollars for the approval, which shall be tendered with the
application for approval: Provided, That mines producing coal
solely for the operator's use shall be issued a permit without
charge if coal production will be less than fifty tons a year.
Within thirty days after the first day of January of each
year, the holder of a permit to open a mine shall apply for the extension of the permit for an additional year. The permit,
evidenced by a document issued by the director, shall be granted as
a matter of right for a fee of one hundred dollars if, at the time
application is made, the permit holder is in compliance with the
provisions of section seventy-seven of this article and has paid or
otherwise appealed all coal mine assessments issued to the mine if
operated by the permit holder and imposed under article one of this
chapter. Applications for extension of permits not submitted
within the time required shall be processed as an application to
open or reopen a mine and shall be accompanied by a fee of one
hundred dollars.
(b) Permits issued pursuant to this section are not
transferable.
(c) If the operator of a mine is not the permit holder as
defined in subsection (a) of this section, then the operator shall
apply for and obtain a certificate of approval to operate the mine
on which the permit is held prior to commencing operations. The
operator shall pay a fee of one hundred dollars, which payment
shall be tendered with the application for approval. The approval,
evidenced by a certificate issued by the director, shall be granted
if, at the time application is made, the applicant is in compliance
with the provisions of section seventy-seven of this article and
has paid or otherwise appealed all coal mine assessments imposed on
the applicant for the certificate of approval under article one of this chapter.
(d) In addition to the director's authority to file a petition
for enforcement under subdivision (4), subsection (a), section
twenty-one, article one of this chapter, if an operator holding a
certificate of approval issued pursuant to subsection (c) of this
section, has been assessed a civil penalty in accordance with
section twenty-one, article one of this chapter, and its
implementing rules, and the penalty has become final, fails to pay
the penalty within the time prescribed in the order, the director
or the authorized representative of the director, by certified
mail, return receipt requested, shall send a notice to the operator
advising the operator of the unpaid penalty. If the penalty is not
paid in full within sixty days from the issuance of the notice of
delinquency by the director, then the director may revoke the
operator's certificate of approval: Provided, That the operator to
whom the delinquency notice is issued has thirty days from receipt
of the delinquency notice to request, by certified mail, return
receipt requested, a public hearing held in accordance with the
procedures of section seventeen, article one of this chapter, and
its implementing rules, including application for temporary relief.
Once the operator's certificate of approval is revoked pursuant to
this subsection, the operator may not obtain any certificate of
approval under the provisions of this section to operate any other
mine until that operator pays the delinquent penalties that have become final.
(e) Every firm, corporation, partnership or individual that
contracts to perform services or construction at a coal mine is
considered to be an operator and shall apply for and obtain a
certificate of approval prior to commencing operations: Provided,
That these persons shall only be required to obtain one certificate
annually: Provided, however, That persons such as, but not limited
to, consultants, mine vendors, office equipment suppliers and
maintenance and delivery personnel are excluded from this
requirement to obtain a certificate of approval. Operators who
are required to obtain a certificate of approval pursuant to the
provisions of this subsection shall pay a fee of one hundred
dollars which shall be tendered with the application for approval.
Approval evidenced by a certificate issued by the director, shall
be granted if, at the time the application is made, the applicant
has paid or otherwise appealed all coal mine assessments imposed on
the applicant under article one of this chapter.
Within thirty days after the first day of January of each
year, the holder of a certificate of approval shall apply for the
extension of that approval for an additional year. Applications
for extension shall be accompanied by a fee of one hundred dollars.
An extension shall be granted if, at the time application is made,
the applicant has paid or otherwise appealed all coal mine
assessments imposed on the applicant under article one of this chapter. All delinquent assessments which have been imposed upon
a certificate of approval holder or applicants under this section
may not be imposed upon any permit holder or certificate of
approval holder or any applicant pursuant to subsection (a) or (c)
of section sixty-three.
(f) The provisions of this section shall be printed on the
reverse side of every permit issued under subsection (a) of this
section and certificate of approval issued under subsection (d) of
this section.
(g) The district mine inspector shall conduct a pre-inspection
of the area proposed for underground mining prior to issuance of
any new opening permit approval.
(h) After the first day of July, one thousand nine hundred
ninety-seven, all moneys collected by the office of miners' health,
safety and training for the approval fees set forth in subsections
(a), (b) and (e) of this section shall be deposited with the
treasurer of the state of West Virginia to the credit of the
general administration--operating permit fees fund. The operating
permit fees fund shall be used by the director who is authorized to
expend the moneys in the fund for the administration of this
chapter: Provided, That after the thirtieth day of June, one
thousand nine hundred ninety-eight, all moneys collected by the
office of miners' health, safety and training for the approval fees
set forth in subsections (a), (b) and (e) of this section shall be deposited with the state treasurer to the credit of the general
fund.