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Introduced Version House Bill 2290 History

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Key: Green = existing Code. Red = new code to be enacted
hb2290 intr
H. B. 2290


(By Mr. Speaker, (Mr. Thompson), and Delegate Armstead)

[By Request of the Executive]

[Introduced January 17, 2007; referred to the

Committee on Industry and Labor, Economic Development and Small Business then the Judiciary.]




A BILL to amend and reenact §22A-1-15 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §22A-2-4a; to amend and reenact §22A-2-5 of said code; to amend and reenact §22A-7-5 of said code; to amend said code by adding thereto a new section, designated §22A-7-7; and to amend said code by adding thereto a new article, designated §22A-11-1, §22A-11-2, §22A-11-3 and §22A-11-4, all relating to coal mine health and safety; authorizing Director of the Office of Miners' Health, Safety and Training to issue closure orders for a history of violations demonstrating a disregard for health and safety; prohibiting the use of a belt conveyor entry as an intake air course and providing exceptions thereto; providing requirements for the design, construction, and monitoring of sealed areas; prohibiting use of alternative seals and providing for requirements for remediation of existing alternative seals; prohibiting the use of bottom mining and providing exceptions thereto; providing continuing education requirements for a mine foreman-fire boss; and continuing the Mine Safety Technology Task Force.

Be it enacted by the Legislature of West Virginia:
That §22A-1-15 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §22A-2-4a; that §22A-2-5 of said code be amended and reenacted; that §22A-7-5 of said code be amended and reenacted; that said code be amended by adding thereto a new section designated §22A-7-7; and that said code be amended by adding thereto a new article, designated §22A-11-1, §22A-11-2, §22A-11-3 and §22A-11-4, all to read as follows:
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.

§22A-1-15. Findings, orders and notices.
(a) If, upon any inspection of a coal mine, an authorized representative of the director finds that an imminent danger, exists, such representative shall determine the area throughout which such danger exists, and thereupon shall issue forthwith an order requiring the operator of the mine or the operator's agent to cause immediately all persons, except those referred to in subdivisions (1), (2), (3) and (4), subsection (c) (e) of this section, to be withdrawn from and to be prohibited from entering such area until an authorized representative of the director determines that such imminent danger no longer exists.
All employees on the inside and outside of a mine who are idled as a result of the posting of a withdrawal order by a mine inspector shall be compensated by the operator at their regular rates of pay for the period they are idled, but not more than the balance of such shift. If such order is not terminated prior to the next working shift, all such employees on that shift who are idled by such order are entitled to full compensation by the operator at their regular rates of pay for the period they are idled, but for not more than four hours of such shift.
(b) If, upon any inspection of a coal mine, an authorized representative of the director finds that there has been a violation of the law, but the violation has not created an imminent danger, he or she shall issue a notice to the operator or the operator's agent, fixing a reasonable time for the abatement of the violation. If, upon the expiration of the period of time, as originally fixed or subsequently extended, an authorized representative of the director finds that the violation has not been totally abated, and if the director also finds that the period of time should not be further extended, the director shall find the extent of the area affected by the violation and shall promptly issue an order requiring the operator of such mine or the operator's agent to cause immediately all persons, except those referred to in subdivisions (1), (2), (3) and (4), subsection (c) (e) of this section, to be withdrawn from, and to be prohibited from entering such area until an authorized representative of the director determines that the violation has been abated.
(c)
If, upon any inspection of a coal mine, an authorized representative of the director finds that an imminent danger exists in an area of the mine, in addition to issuing an order pursuant to subsection (a) of this section, the director shall review the compliance record of the mine.
(1) A review of the compliance record conducted in accordance with this subsection shall, at a minimum, include a review of the following:
(A) Any closure order issued pursuant to subsection (a) of this section;
(B) Any closure order issued pursuant to subsection (b) of this section;
(C) Any enforcement measures taken pursuant to this chapter, other than those authorized under subsections (a) and (b) of this section;
(D) Any evidence of the operator's lack of good faith in abating violations at the mine;
(E) Any accident, injury, or illness record that demonstrates a serious safety or health management problem at the mine;
(F) The number of employees at the mine, the size, layout and physical features of the mine, and the length of time said mine has been in operation; and
(G) Any mitigating circumstances.
(2) If, after review of the mine's compliance record, the director determines that the mine has a history of repeated violations of a particular standard, a history of repeated violations of standards related to the same hazard, or a history of repeated violations caused by unwarrantable failure to comply, and such history or histories demonstrate the operator's disregard for the health and safety of miners, the director shall issue a closure order for the entire mine, and thereupon shall issue forthwith an order requiring the operator of the mine or the operator's agent to cause immediately all persons, except those referred to in subdivisions (1), (2), (3) and (4), subsection (e) of this section, to be withdrawn from and to be prohibited from entering the mine until a thorough inspection of the mine has been conducted by the office and the director determines that
the operator has abated all violations related to the imminent danger and any violations unearthed in the course of such inspection.
(d) All employees on the inside and outside of a mine who are idled as a result of the posting of a withdrawal order by a mine inspector shall be compensated by the operator at their regular rates of pay for the period they are idled, but not more than the balance of such shift. If such order is not terminated prior to the next working shift, all such employees on that shift who are idled by such order are entitled to full compensation by the operator at their regular rates of pay for the period they are idled, but for not more than four hours of such shift.
(c) (e) The following persons are not required to be withdrawn from or prohibited from entering any area of the coal mine subject to an order issued under this section:
(1) Any person whose presence in such area is necessary, in the judgment of the operator or an authorized representative of the director, to eliminate the condition described in the order;
(2) Any public official whose official duties require him or her to enter such area;
(3) Any representative of the miners in such mine who is, in the judgment of the operator or an authorized representative of the director, qualified to make coal mine examinations or who is accompanied by such a person and whose presence in such area is necessary for the investigation of the conditions described in the order; and
(4) Any consultant to any of the foregoing.
(d) (f) Notices and orders issued pursuant to this section shall contain a detailed description of the conditions or practices which cause and constitute an imminent danger or a violation of any mandatory health or safety standard and, where appropriate, a description of the area of the coal mine from which persons must be withdrawn and prohibited from entering.
(e) (g) Each notice or order issued under this section shall be given promptly to the operator of the coal mine or the operator's agent by an authorized representative of the director issuing such notice or order, and all such notices and orders shall be in writing and shall be signed by such representative and posted on the bulletin board at the mine.
(f) (h) A notice or order issued pursuant to this section may be modified or terminated by an authorized representative of the director.
(g) (i) Each finding, order and notice made under this section shall promptly be given to the operator of the mine to which it pertains by the person making such finding, order or notice.
ARTICLE 2. UNDERGROUND MINES.
§22A-2-4a. Utilization of belt air.
(a) Definitions. -- For purposes of this section, "belt air" means the use of a belt conveyor entry as an intake air course to ventilate the working sections of a mine or areas where mechanized mining equipment is being installed or removed.
(b) Upon the effective date of the enactment of this section during the regular session of the Legislature in the year two thousand seven, belt air shall not be utilized to ventilate the working sections of a mine or areas where mechanized mining equipment is being installed or removed: Provided, That if an alternative method of ventilation will at all times guarantee no less than the same measure of protection afforded the miners of an underground mine by the foregoing, or if the application of the foregoing to an underground mine will result in a diminution of safety to the miners in such mine, the director may approve the interim use of belt air pursuant to the following:
(1) For those operators utilizing belt air pursuant to a ventilation plan approved by the director in accordance with the provisions of section two of this article prior to the effective date of the enactment of this section, the director shall cause an inspection to be made of the mine ventilation system and ventilation equipment. The director may allow the continued use of belt air in such mine if he or she determines that: (i) The use meets the minimum requirements of 30 CFR 750.350(b); and (ii) the use, as set forth in the ventilation plan and as inspected, will at all times guarantee no less than the same measure of protection afforded the miners of such mine if belt air were not used, or that the prohibition of the use of belt air in such mine will result in a diminution of safety to the miners in such mine.
(2) For those operators submitting on or after the effective date of the enactment of this section a ventilation plan proposing the use of belt air to the director pursuant to section two of this article, the director shall immediately upon receipt of such plan give notice of the plan to the representative of miners in such mine and cause such investigation to be made as the director deems appropriate: Provided, That such investigation shall include a review of any comments on the plan submitted by the representative of miners in such mine. Upon receiving the report of such investigation, the director shall make findings of fact, and issue a written decision, incorporating therein his or her findings and an order approving or denying the use of belt air pursuant to the terms of the ventilation plan. To approve the use of belt air pursuant to a ventilation plan, the director must, at a minimum, determine that: (i) The operator's proposed use of belt air meets the minimum requirements of 30 CFR 750.350(b); and (ii) approval of the proposed use of belt air will at all times guarantee no less than the same measure of protection afforded the miners of such mine if belt air were not used, or that the prohibition of the use of belt air in such mine will result in a diminution of safety to the miners in such mine.
(3) The interim use of belt air shall be accurately reflected in operator's plan of ventilation, as approved by the director in accordance with the provisions of section two of this article.
(c) Upon completion of the independent scientific and engineering review concerning the utilization of belt air and the composition and fire retardant properties of belt materials in underground coal mining by the technical study panel created pursuant to the provisions of 30 U.S.C. §963 and the Secretary of the United States Department of Labor's corresponding report to Congress pursuant to the same, the Board of Coal Mine Health and Safety shall, within thirty days of the Secretary of Labor's report to Congress, provide the Governor with his or her recommendations, if any, for the enactment, repeal or amendment of any statute or regulatory provision which would enhance the safe ventilation of underground mines and the health and safety of miners.
§22A-2-5. Unused and abandoned parts of mine.

(a) In any mine, all workings which are abandoned after the first day of July, one thousand nine hundred seventy-one, shall be sealed or ventilated. If such workings are sealed, the sealing shall be done with incombustible material in a manner prescribed by the director, and one or more of the seals of every sealed area shall be fitted with a pipe and cap or valve to permit the sampling of gases and measuring of hydrostatic pressure behind the seals. For the purpose of this section, working within a panel shall not be deemed to be abandoned until such panel is abandoned.
(b) Air that has passed through an abandoned area or an area which is inaccessible or unsafe for inspection shall not be used to ventilate any working place in any working mine, unless permission is granted by the director with unanimous agreement of the technical and mine safety review committee. Air that has been used to ventilate seals shall not be used to ventilate any working place in any working mine. No air which has been used to ventilate an area from which the pillars have been removed shall be used to ventilate any working place in a mine, except that such air, if it does not contain 0.25 volume percent or more of methane, may be used to ventilate enough advancing working places immediately adjacent to the line of retreat to maintain an orderly sequence of pillar recovery on a set of entries. Before sealed areas, temporary or permanent, are reopened, the director shall be notified.
(c) On or after the effective date of the amendment and reenactment of this section during the regular session of the Legislature in two thousand seven, the design of all new seals shall be certified by a professional engineer registered with the board of professional engineers pursuant to article thirteen, chapter thirty of this code. Every seal design shall have the professional engineer's certificate and signature, in addition to his or her seal, in the following form:
"I the undersigned, do hereby certify that this seal design and the construction thereof are, to the best of my knowledge, in accordance with all applicable requirements under state and federal law and regulation.
_____________________P.E."
(d) On or after the effective date of the amendment and reenactment of this section during the regular session of the Legislature in two thousand seven, the construction of all new seals shall be of solid concrete blocks in accordance with the provisions of 30 CFR 75.335(a)(1), approved by the director in accordance with rules authorized in this section, and certified by the mine foreman-fire boss of the mine as being in accordance with the certified design prepared by an engineer pursuant to subsection (c) of this section.
(e) In all mines containing workings sealed using alternative methods or materials pursuant to 30 CFR 75.335 (a)(12), the mine foreman-fire boss shall measure the atmosphere directly behind the seals at least once every twenty-four hours. Such measurements shall include but not be limited to the methane and oxygen concentrations and air quantities and the barometric pressure. Such measurements shall be recorded daily in a book kept on the surface for that purpose.
(f)
All seals using alternative methods or materials pursuant to 30 CFR 75.335(a)(2) in existence as of the effective date of this section shall be remediated pursuant to a remediation plan approved by the director. The design, development, submission, and implementation of the remediation plan shall be the responsibility of the operator of each mine. Pursuant to rules authorized in this section, the Board of Coal Mine Health and Safety shall specify appropriate methods of remediation, including, but not limited to:
(1) The enhancement of existing seals in a manner approved by the director to provide the same level of protection as seals constructed in accordance with subsection (d) of this section;
(2) Construction of new seals in accordance with subsections (c) and (d) of this section; and
(3) The procedure for daily measurement of the mine atmosphere behind seals pursuant to subsection (e) of this section.
(g) Upon the effective date of the amendment and reenactment of this section during the regular session of the Legislature in two thousand seven, second mining of lower coal on retreat, also known as bottom mining, shall not be permitted unless an operator has first submitted and received approval by the director of a remediation plan that sets forth measures that will be taken to mitigate the effects of remnant ramps and other conditions created by bottom mining on retreat which can increase the force of explosions originating in and emanating out of workings that have been bottom mined. The director shall require that such plans be certified by a professional engineer in a similar manner as seal designs pursuant to subsection (c) of this section.
(h) The Board of Coal Mine Health and Safety shall develop and promulgate rules pursuant to the provisions of Section four, article six of this chapter to implement and enforce the provisions of this section.
(i) Upon the issuance of mandatory health and safety standards relating to the sealing of abandoned areas in underground coal mines by the Secretary of the United States Department of Labor pursuant to 30 U.S.C. §811, as amended by section ten of the federal Mine Improvement and New Emergency Response Act of 2006, the director, working in consultation with the board of coal mine health and safety, shall, within thirty days, provide the Governor with his or her recommendations, if any, for the enactment, repeal or amendment of any statute or regulatory provision which would enhance the safe sealing of abandoned mine workings and the health and safety of miners.
ARTICLE 7. BOARD OF MINER TRAINING, EDUCATION AND CERTIFICATION.
§22A-7-5. Board powers and duties.
(a) The board shall establish criteria and standards for a program of education, training and examination to be required of all prospective miners and miners prior to their certification in any of the various miner specialties requiring certification, under this article or any other provision of this code. Such specialties include, but are not limited to, underground miner, surface miner, apprentice, underground mine foreman-fire boss, assistant underground mine foreman-fire boss, shotfirer, mine electrician and belt examiner. Notwithstanding the provisions of this section the director may by rule further subdivide the classification for certification.
(b) The board may require certification in other miner occupational specialties: Provided, That no new specialty may be created by the board unless certification in a new specialty is made desirable by action of the federal government requiring certification in a specialty not enumerated in this code.
(c) The board may establish criteria and standards for a program of preemployment education and training to be required of miners working on the surface at underground mines who are not certified under the provisions of this article or any other provision of this code.
(d) The board shall set minimum standards for a program of continuing education and training of certified persons and other miners on an annual basis: Provided, That said standards shall be consistent with the provisions of section seven of this article. Prior to issuing said standards, the board shall conduct public hearings at which the parties who may be affected by its actions may be heard. Such education and training shall be provided in a manner determined by the director to be sufficient to meet the standards established by the board.
(e) The board may, in conjunction with any state, local or federal agency or any other person or institution, provide for the payment of a stipend to prospective miners enrolled in one or more of the programs of miner education, training and certification provided for in this article or any other provision of this code.
(f) The board may also, from time to time, conduct such hearings and other oversight activities as may be required to ensure full implementation of programs established by it.
(g) Nothing in this article empowers the board to revoke or suspend any certificate issued by the director of the office of miners' health, safety and training.
(h) The board may, upon its own motion or whenever requested to do so by the director, deem two certificates issued by this state to be of equal value or deem training provided or required by federal agencies to be sufficient to meet training and education requirements set by it, the director, or by the provisions of this code.
§22A-7-7. Continuing education requirements for underground mine foreman-fire boss.

(a) An existing underground mine foreman-fire boss certified pursuant to this article shall complete the continuing education requirements in this section within two years from the effective date of this section as enacted during the regular session of the Legislature in two thousand seven and every two years thereafter. An underground mine foreman-fire boss certified pursuant to this article on or after the effective date of this section as enacted during the regular session of the Legislature in two thousand seven shall complete the continuing education requirements in this section within two years of their certification and every two years thereafter.
(b) In order to receive continuing education credit pursuant to this section, a mine foreman-fire boss shall satisfactorily complete a mine foreman-fire boss continuing education course approved by the board and taught by a mine safety instructor appointed pursuant to section nine, article one of this chapter or other instructor approved by the director. The mine foreman-fire boss shall submit documentation to the office certified by the instructor that indicates the required continuing education has been completed prior to the deadlines set forth in this subsection. (c) The mine foreman-fire boss shall complete at least six hours of continuing education every two years.
(d) The content of the continuing education course shall include, but not be limited to, the:
(1) The provisions of this chapter;
(2) West Virginia underground coal mine health and safety rules;
(3) The responsibilities of a mine foreman-fire boss;
(4) The policies and memoranda of the Office of Miners' Health, Safety and Training, the Board of Coal Mine Health and Safety, and the Board of Miner Training, Education and Certification; and
(5) Review of fatality and accident trends in underground coal mines.
(e) Failure to complete the requirements of this section shall result in suspension of a mine foreman-fire boss certification pending completion of the continuing education requirements. The office shall send notice of any suspension to the last address the certified mine foreman-fire boss reported to the director. If the requirements are not met within two years of the suspension date, the director shall file a charge of breach of duty with the board of appeals pursuant to the procedures set forth in section thirty-one, article one of this chapter and, upon determining that such requirements have not been meet, the board of appeals shall revoke the mine foreman-fire boss' certification,
which shall not be renewed except upon successful completion of the examination prescribed by law for mine foremen-fire bosses .
(f) Upon request, the office will provide a mine operator and other interested parties a list of individuals whose mine foreman-fire boss certification is in suspension or has been revoked pursuant to this section.
ARTICLE 11. MINE SAFETY TECHNOLOGY.
§22A-11-1. Legislative findings, purposes and intent.
The Legislature hereby finds and declares:

(1) That the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource -- the miner;
(2) That in furtherance of this priority, the provisions of article two of this chapter are designed to protect the health and safety of this state's coal miners by requiring certain minimum standards for, among other things, certain health and safety technology utilized by each underground miner;
(3) That the proper implementation of this technology in West Virginia's underground mines would benefit from the specialized oversight of persons with experience and competence in coal mining, coal mine health and safety, and the expanding role of technology; and
(4) That, in furtherance of the foregoing, it is the intent of the Legislature to create a permanent task force which, on a continuous basis, shall evaluate and study issues relating to the commercial availability and
functional and operational capability of existing and emerging technologies in coal mine health and safety, as well as issues relating to the implementation, compliance and enforcement of regulatory requirements governing such technologies.
§22A-11-2. Mine Safety Technology Task Force continued; membership; method of nomination and appointment .

(a) The Mine Safety Technology Task Force, heretofore created and existing under the authority of the director pursuant to the provisions of section six, article one of this chapter, is hereby continued as provided by this article.
(b) The task force shall consist of nine members who are appointed as hereinafter specified in this section:
(1) The Governor shall appoint, by and with the advice and consent of the Senate, three members to represent the viewpoint of operators in this state. When such members are to be appointed, the Governor shall request from the major trade association representing operators in this state a list of three nominees for each such position on the task force. 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. 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, by and with the advice and consent of the Senate, three members who can reasonably be expected to represent the viewpoint of the working miners of this state. When members are to be appointed, the Governor shall request from the major employee organization representing coal miners within this state a list of three nominees for each position on the task force. The highest ranking official within the major employee organization representing coal miners within this state shall submit a list of three nominees for each such position on the board. The nominees shall have a background in coal mine health and safety.
(3) The Governor shall appoint, by and with the advice and consent of the Senate, one certified mine safety professional from the College of Engineering and Mineral Resources at West Virginia University;
(4) The Governor shall appoint, by and with the advice and consent of the Senate, one attorney with experience in issues relating to coal mine health and safety; and
(5) The ninth member of the task force is the director, or his or her designee, who shall serve as chair of the task force. The director shall furnish to the task force such secretarial, clerical, technical, research and other services as are necessary to the conduct of the business of the task force.
(c) Each appointed member of the task force shall serve at the will and pleasure of the Governor.
(d) Whenever a vacancy on the task force 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 task force is vacant.
§22A-11-3. Task force powers and duties
.
(a) The task force shall provide technical and other assistance to the office related to the implementation of the new technological requirements set forth in the provisions of section fifty-five, article two, of this chapter, as amended and reenacted during the regular session of the Legislature in the year two thousand six, and requirements for other mine safety technologies.
(b) The task force, working in conjunction with the director, shall continue to study issues regarding the commercial availability, the functional and operational capability, and the implementation, compliance and enforcement of the following protective equipment:
(1) Self-contained self-rescue devices, as provided in subsection (f), section fifty-five, article two of this chapter;
(2) Wireless emergency communication devices, as provided in subsection (g), section fifty-five, article two of this chapter;
(3) Wireless emergency tracking devices, as provided in subsection (h), section fifty-five, article two of this chapter; and
(4) Any other protective equipment required by this chapter or regulations therefor promulgated in accordance with law that the director determines would benefit from the expertise of the task force.
(c) The task force shall on a continuous basis study, monitor and evaluate:
(1) The potential for enhancing coal mine health and safety through the application of existing technologies and techniques;
(2) Opportunities for improving the integration of technologies and procedures increase the performance and survivability of coal mine health and safety systems;
(3) Emerging technological advances in coal mine health and safety; and
(4) Market forces impacting the development of new technologies, including issues regarding the costs of research and development, regulatory certification, and incentives designed to stimulate the marketplace.
(d) On or before the first day of July of each year, the task force shall submit a report to the Governor and the Board of Coal Mine Health and Safety that shall include, but not be limited to:
(1) A comprehensive overview of issues regarding the implementation of the new technological requirements set forth in the provisions of section fifty-five, article two, of this chapter, or regulations therefor promulgated in accordance with law;
(2) A summary of any emerging technological advances that would improve coal mine health and safety;
(3) Recommendations, if any, for the enactment, repeal or amendment of any statute which would enhance technological advancement in coal mine health and safety; and
(4) Any other information the task force deems appropriate.
(e) In performing its duties, the task force shall, where possible, consult with, among others, mine engineering and mine safety experts, radiocommunication and telemetry experts and relevant state and federal regulatory personnel.
§22A-11-4. Approval of devices
.
Prior to approving any protective equipment or device that has been evaluated by the task force pursuant to the provisions of subsection (b) of this section, the director shall consult with the task force and review any applicable written reports issued by the task force and the findings set forth therein and shall consider such findings in making any approval determination.

NOTE: The purpose of this bill is to improve coal mine health and safety; to authorize Director of the Office of Miners' Health, Safety and Training to issue closure orders for a pattern of violations; to prohibit the use of a belt conveyor entry as an intake air course; to provide requirements for the design, construction, remediation and monitoring of sealed areas; to provide for the remediation of the effects of bottom mining; and to continue the Mine Safety Technology Task Force.

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

§22A-2-4a, §22A-7-7, §22A-11-1, §22A-11-2, §22A-11-3 and §22A-11-4 are new, therefore, strike-throughs and underscoring have been omitted.
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