Committee Substitute
House Bill 4288 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 4288
(By Delegates Martin, Varner, Kuhn,
Warner, Collins and Walters)
(Originating in the Committee on Finance)
[March 2, 1998]
A BILL to amend and reenact section two, article one, chapter
twenty-two-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend 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 two, 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-1-2. 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 law shall be assessed a civil penalty by the
director under subdivision (3) of this subsection, which penalty
shall be not more than three thousand dollars, for each such
violation. Each such violation shall constitute a separate
offense. In determining the amount of the penalty, the 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 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 such 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
therein, that a violation did occur, 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) If the person against whom a civil penalty is assessed
fails to pay the penalty within the time prescribed in such order,
the director 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 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 director or it may remand the
proceedings to the 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 twenty 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 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 such corporation who
knowingly authorized, ordered or carried out such 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 the 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 such
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
such equipment, who willfully misrepresents such equipment as
complying with the provisions of this law, or with any
specification or rule of the director applicable to such equipment,
and which does not so comply, is 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 twenty-one of
this article shall be collected by the director and deposited with
the state treasurer of the state of West Virginia to the credit of
the special health, safety and training fund the general 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.
ARTICLE. UNDERGROUD 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) After the first day of July, one thousand nine hundred
seventy-one, no mine shall may be opened or reopened unless prior
approval has been obtained from the director of the office of
miners' health, safety and training, which approval shall may not
be unreasonably withheld. The operator shall pay for such the
approval a fee of one hundred dollars, which payment shall be
tendered with the application for such 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 such a permit to open a mine shall apply for
the extension of such permit for an additional year. Such 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 such 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 such 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 shall not be are
not transferable.
(c) If the operator of a mine is not the permit holder as
defined in subsection (a) above of this section, then such the
operator must apply for and obtain a certificate of approval to
operate the mine on which the permit is held prior to commencing
operations. An operator who is not the permit holder operating
such the mine on the tenth day of April, one thousand nine hundred
ninety-three, must apply for a certificate of approval on or before
the first day of July, one thousand nine hundred ninety-three. The
operator shall pay a fee of one hundred dollars, which payment
shall be tendered with the application for approval. Such The approval, evidenced by a certificate issued by the director, shall
be granted if, at the time such 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 such 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, against whom a civil penalty is has been assessed a civil
penalty in accordance with section twenty-one, article one of this
chapter, and implementing regulations rules, and which the penalty
has become final, fails to pay the penalty within the time
prescribed in such the order, the director or the authorized
representative of the director, by certified mail, return receipt
requested, shall send a notice to such 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 such the operator's
certificate of approval: Provided,
That such the operator to whom
the delinquency notice is issued shall have thirty days from
receipt thereof 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 implementing
rules, including application for temporary relief. Once such the
operator's certificate of approval is revoked pursuant to this
subsection, such the operator shall be is prohibited from obtaining
any certificate of approval under the provisions of this section to
operate any other mine until such time as 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 shall
be is deemed to be an operator and beginning the first day of
January, one thousand nine hundred ninety-five, must apply for and
obtain a certificate of approval prior to commencing operations:
Provided,
That such 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. Any such
operator 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. Such approval Approval evidenced by a
certificate issued by the director, shall be granted if, at the
time such the application is made, the applicant has paid or
otherwise appealed all coal mine assessments imposed on such the applicant under article one of this chapter.
Within thirty days after the first day of January of each
year, the holder of such certificate of approval shall apply for
the extension of such that approval for an additional year.
Applications for extension must be accompanied by a fee of one
hundred dollars. An extension shall be granted if, at the time
such application is made, the applicant has paid or otherwise
appealed all coal mine assessments imposed on such 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 shall 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) and
certificate of approval issued under subsection (d) herein.
(g) The district mine inspector shall be contacted for 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.