H. B. 4525
(By Delegates Caputo, Miley, Hunt, Butcher,
Craig, Boggs, Mahan, Kominar, Varner,
Hamilton and White)
[Introduced
February 17, 2010
; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §22A-1-21 of the Code of West Virginia,
1931, as amended; to amend and reenact §22A-2A-301,
§22A-2A-304 and §22A-2A-310 of said code; to amend and reenact
§22A-6-1, §22A-6-3, §22A-6-4, §22A-6-6 and §22A-6-7 of said
code; to amend and reenact §22A-7-4, §22A-7-5 and §22A-7-6 of
said code; and to amend and reenact §22A-11-2 and §22A-11-3 of
said code, all relating to changing the composition, powers
and responsibilities of the board of Coal Mine Health and
Safety.
Be it enacted by the Legislature of West Virginia:
That §22A-1-21 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §22A-2A-301, §22A-2A-304 and
§22A-2A-310 of said code be amended and reenacted; that §22A-6-1,
§22A-6-3, §22A-6-4, §22A-6-6 and §22A-6-7 of said code be amended
and reenacted; that §22A-7-4, §22A-7-5 and §22A-7-6 of said code be
amended and reenacted; and that §22A-11-2 and §22A-11-3 of said
code 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 $3,000, for each violation, unless the director determines
that it is appropriate to impose a special assessment for said
violation, pursuant to the provisions of subdivision (2),
subsection (b) of this section. Each violation constitutes a
separate offense. In determining the amount of the penalty, the
director shall consider the operator's history of previous
violations, whether the operator was negligent, 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. Not later than June 1, 2002, the
director shall promulgate as a rule the procedure for assessing
such civil penalties. This rule will be in effect upon filing,
without regard to the provisions of chapter twenty-nine-a of this
code.
(2) 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.
(3) 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 (4) of this subsection which shall
not be more than $250 for each occurrence of the violation.
(4) A civil penalty under subdivision (1) or (2) of subsection
(a) of this section or subdivision (1) or (2) of subsection (b) of
this section 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.
(5) 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 the order sought to be enforced
was issued. The court has jurisdiction to enter a judgment
enforcing, modifying and enforcing as 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) (1) 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 (5), subsection (a) of this section of
not more than $5,000 and for a second or subsequent violation
assessed a civil penalty of not more than $10,000, unless the
director determines that it is appropriate to impose a special
assessment for said violation, pursuant to the provisions of
subdivision (2) of this subsection.
(2) In lieu of imposing a civil penalty pursuant to the
provisions of subsection (a) of this section or subdivision (1) of
this subsection, the director may impose a special assessment if an
operator violates a health or safety provision of this chapter or
health or safety rule promulgated pursuant to this chapter and the
violation is of serious nature and involves one or more of the
following by the operator:
(A) Violations involving fatalities and serious injuries;
(B) Failure or refusal to comply with any order issued under
section fifteen of this article;
(C) Operation of a mine in the face of a closure order;
(D) Violations involving an imminent danger;
(E) Violations involving an extraordinarily high degree of
negligence or gravity or other unique aggravating circumstances; or
(F) A discrimination violation under section twenty-two of this article.
In situations in which the director determines that there are
factors present which would make it appropriate to impose a special
assessment, the director shall assess a civil penalty of at least
$5,000 and of not more than $10,000.
(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 $5,000 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 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) 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 this section 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 health and
safety administrator who is authorized to expend the moneys in the fund for the administration of this chapter pursuant to article
six, section six of this chapter.
ARTICLE 2A. USE OF DIESEL-POWERED EQUIPMENT IN UNDERGROUND COAL
MINES.
PART 3. WEST VIRGINIA DIESEL EQUIPMENT COMMISSION.
§22A-2A-301. Creation of the West Virginia diesel equipment
commission.
The West Virginia diesel equipment commission, consisting of
six members, is hereby created
in independent of the Office of
Miners' Health, Safety and Training.
of the bureau of commerce
§22A-2A-304. Nomination and appointment of members.
(a) Prior to the appointment of a person to the commission,
the Governor shall request the nomination of a candidate for the
appointment. If the position is to be filled by a person who can
reasonably be expected to represent the viewpoint or interests of
underground coal operators in this state, the Governor shall
request the nomination from the major trade association
representing underground coal operators in this state. If the
position is to be filled by a person who can reasonably be expected
to represent the viewpoint or interests of working miners in this
state, the Governor shall request the nomination from the highest
ranking officer of the major employee organization representing
coal miners in this state.
The Director of the Office of Miner's Health, Safety and Training or his or her designee shall serve as
a nonvoting ex officio member.
(b) The Governor shall appoint a member to serve for the term
for which the person was nominated, and until his or her successor
has been nominated and appointed:
Provided, That if a successor is
not appointed within one hundred twenty days after the expiration
of a member's term, a vacancy is deemed to exist. The Governor may
reject a nomination and decline to appoint a nominee only if the
person does not have the qualifications, integrity and
responsibility necessary to enable the person to perform his or her
duties as a member of the commission.
(c) Appointments to fill vacancies on the commission shall be
for the unexpired term of the member to be replaced.
§22A-2A-310. Duties of commission following promulgation of
initial rules.
(a) After the promulgation of the initial rules, the
commission shall have as its primary duties the implementation of
this article and the evaluation and adoption of state of the art
technology and methods, reflected in engines and engine components,
emission control equipment and procedures, that when applied to
diesel-powered underground mining machinery shall reasonably reduce
or eliminate diesel exhaust emissions and enhance protections of
the health and safety of miners. The technology and methods
adopted by the commission shall have been demonstrated to be reliable. In making a decision to adopt new technology and methods,
the commission shall consider the highest achievable measures of
protection for miners' health and safety through available
technology, engineering controls and performance requirements and
shall further consider the cost, availability, adaptability and
suitability of any available technology, engineering controls and
performance requirements as they relate to the use of diesel
equipment in underground coal mines. Any state of the art
technology or methods adopted by the commission shall not reduce or
compromise the level of health and safety protection of miners.
(b) Upon application of a coal mine operator, the commission
shall consider site-specific requests for the use of diesel
equipment in underground coal mines and for the use of alternative
diesel-related health and safety technologies and methods. The
commission's action on applications submitted under this subsection
shall be on a mine-by-mine basis. Upon receipt of a site-specific
application, the commission shall conduct an investigation, which
investigation shall include consultation with the mine operator and
the authorized representatives of the miners at the mine.
Authorized representatives of the miners shall include a mine
health and safety committee elected by miners at the mine, a person
or persons employed by an employee organization representing miners
at the mine or a person or persons authorized as the representative
or representatives of miners of the mine in accordance with MSHA regulations at 30 C.F.R. Pt. 40 (relating to representative of
miners). Where there is no authorized representative of the miners,
the commission shall consult with a reasonable number of miners at
the mine. Upon completion of the investigation, the commission may
approve the application for the site-specific request:
Provided,
That an application for a site-specific request under this
subsection may be approved only upon a majority vote of all six
members of the commission. All six members must be present when a
vote is taken.
(1) Within one hundred eighty days of receipt of an
application for use of alternative technologies or methods, the
commission shall complete its investigation. The time period may
be extended with the consent of the applicant.
(2) The commission shall have thirty days in which to render
a final decision approving or rejecting the application.
(3) The commission members shall not approve an application
made under this section if, at the conclusion of the investigation,
the commission members have made a determination that the use of
the alternative technology or method will reduce or compromise the
level of health and safety protection of miners.
(4) The written approval of an application for the use of
alternative technologies or methods shall include the results of
the commission's investigation and describe the specific conditions
of use for the alternative technology or method.
(5) The written decision to reject an application for the use
of alternative technologies or methods shall include the results of
the commission's investigation and shall outline in detail the
basis for the rejection.
(c) The commission shall establish conditions for the use of
diesel-powered equipment in shaft and slope construction operations
at coal mines.
(d) In performing its functions, the commission shall have
access to the services of the board of coal mine health and safety.
The board shall make
clerical administrative support and assistance
pursuant to section six, article six of this chapter available to
enable the commission to carry out its duties.
(e) Any action taken by the commission to either approve or
reject the use of an alternative technology or method, or establish
conditions under subsection (c) of this section, shall be final and
binding and not subject to further review except where a decision
by the commission may be deemed to be an abuse of discretion or
contrary to law. If any party affected by a decision of the
commission believes that the decision is an abuse of discretion or
contrary to law, that party may file a petition for review with the
circuit court of Kanawha County in accordance with the provisions
of the administrative procedures act relating to judicial review of
governmental determinations. The court, in finding that any
decision made by the commission is an abuse of discretion or contrary to law, shall vacate and, if appropriate, remand the case.
(f) The powers and duties of the commission shall be limited
to the matters regarding the use of diesel-powered equipment in
underground coal mines.
(g) Appropriations for the funding of the commission and to
effectuate the purposes of this article shall be made to a budget
account hereby established for that purpose
in the General Revenue
Fund pursuant to section six, article six of this chapter. Such
account shall be separate from any accounts or appropriations for
the office of miners' health, safety and training.
(h) The commission shall be invested with the authority of
issuing interpretive opinions about issues strictly pertaining to
its duties, previous decisions and any other matters under the
jurisdiction of the commission. A unanimous vote is required for
any interpretive opinion by the commission.
ARTICLE 6. BOARD OF COAL MINE HEALTH AND SAFETY.
§22A-6-1. Declaration of legislative findings and purpose.
(a) The Legislature hereby finds and declares that:
(1) The Legislature concurs with the congressional declaration
made in the "Federal Coal Mine Health and Safety Act of 1969" 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) Coal mining is highly specialized, technical and complex and it requires frequent review, refinement and improvement of
standards to protect the health and safety of miners;
(3) During each session of the Legislature, coal mine health
and safety standards are proposed which require knowledge and
comprehension of scientific and technical data related to coal
mining;
(4) The formulation of appropriate rules and practices to
improve health and safety and provide increased protection of
miners can be accomplished more effectively by persons who have
experience and competence in coal mining and coal mine health and
safety.
(b) In view of the foregoing findings, it is the purpose of
this article to:
(1) Continue the board of coal mine health and safety;
(2) Require such board to continue as standard rules the coal
mine health and safety provisions of this code;
(3) Compel the board to review such standard rules and, when
deemed appropriate to improve or enhance coal mine health and
safety, to revise the same or develop and promulgate new rules
dealing with coal mine health and safety; and
(4) Authorize such board to conduct such other activities as
it deems necessary to implement the provisions of this chapter.
(c) The Board of Coal Mine Health and Safety is created as a
separate office within the Department of Commerce. The office will be administered, in accordance with the provisions of this article.
§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, by and with the advice and
consent of the Senate, three members to represent the viewpoint of
those 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 board. All such nominees
shall be persons with special experience and competence in 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, 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 board.
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 health and safety. The Governor shall
make the appointments from the requested list of nominees.
(3) All appointments made by the Governor under the provisions
of subdivisions (1) and (2) of this subsection shall be with the
advice and consent of the Senate.
(4) The seventh member of the board is the director of the
office of miners' health, safety and training, or his or her
designee, who serves as chair of the board as an ex officio
nonvoting member, except that the director may vote if there is a
tie vote when the board is acting pursuant to subsection (e),
section four of this article or subdivision (3), subsection (f),
section seven of this article. 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, based on the request
of the health and safety administrator. The Director of the Office of Miner's Health, Safety and Training or his or her designee shall
serve as a nonvoting ex officio member.
(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) On or after January 1, 2002, the Governor shall appoint,
subject to the approval of a majority of the members of the board
appointed under subdivisions (1) and (2), subsection (a) of this
section, a health and safety administrator 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, contractor, consultant 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 or her receipt of the list of nominations.
(f) A quorum of the board is five four members which shall
include the director of the office of miners' health, safety and
training, or his or her designee, at least two members representing
the viewpoint of operators and at least two members representing
the viewpoint of the working miners, and the board may act
officially by a majority of those members who are present, except
that no vote of the board may be taken unless all seven members are
present.
§22A-6-4. Board powers and duties.
(a) The board shall adopt as standard rules the "coal mine
health and safety provisions of this chapter." Such standard rules
and any other rules shall be adopted by the board without regard to
the provisions of chapter twenty-nine-a of this code. The board of
coal mine health and safety shall devote its time toward
promulgating rules in those areas specifically directed by this
chapter and those necessary to prevent fatal accidents and
injuries.
(b) The board shall review such standard rules and, when
deemed appropriate to improve or enhance coal mine health and
safety, revise the same or develop and promulgate new rules dealing
with coal mine health and safety.
(c) The board shall develop, promulgate and revise, as may be
appropriate, rules as are necessary and proper to effectuate the purposes of article two of this chapter and to prevent the
circumvention and evasion thereof, all without regard to the
provisions of chapter twenty-nine-a of this code:
(1) Upon consideration of the latest available scientific data
in the field, the technical feasibility of standards, and
experience gained under this and other safety statutes, such rules
may expand protections afforded by this chapter notwithstanding
specific language therein, and such rules may deal with subject
areas not covered by this chapter to the end of affording the
maximum possible protection to the health and safety of miners.
(2) No rules promulgated by the board shall reduce or
compromise the level of safety or protection afforded miners below
the level of safety or protection afforded by this chapter.
(3) Any miner or representative of any miner, or any coal
operator has the power to petition the circuit court of Kanawha
County for a determination as to whether any rule promulgated or
revised reduces the protection afforded miners below that provided
by this chapter, or is otherwise contrary to law: Provided, That
any rule properly promulgated by the board pursuant to the terms
and conditions of this chapter creates a rebuttable presumption
that said rule does not reduce the protection afforded miners below
that provided by this chapter.
(4) The director shall cause proposed rules and a notice
thereof to be posted as provided in section eighteen, article one of this chapter. The director shall deliver a copy of such
proposed rules and accompanying notice to each operator affected.
A copy of such proposed rules shall be provided to any individual
by the director's request. The notice of proposed rules shall
contain a summary in plain language explaining the effect of the
proposed rules.
(5) The board shall afford interested persons a period of not
less than thirty days after releasing proposed rules to submit
written data or comments. The board may, upon the expiration of
such period and after consideration of all relevant matters
presented, promulgate such rules with such modifications as it may
deem appropriate.
(6) On or before the last day of any period fixed for the
submission of written data or comments under subdivision (5) of
this section, any interested person may file with the board written
objections to a proposed rule, stating the grounds therefor and
requesting a public hearing on such objections. As soon as
practicable after the period for filing such objections has
expired, the board shall release a notice specifying the proposed
rules to which objections have been filed and a hearing requested.
(7) Promptly after any such notice is released by the board
under subdivision (6) of this section, the board shall issue notice
of, and hold a public hearing for the purpose of receiving relevant
evidence. Within sixty days after completion of the hearings, the board shall make findings of fact which shall be public, and may
promulgate such rules with such modifications as it deems
appropriate. In the event the board determines that a proposed
rule should not be promulgated or should be modified, it shall
within a reasonable time publish the reasons for its determination.
(8) All rules promulgated by the board shall be published in
the state register and continue in effect until modified or
superseded in accordance with the provisions of this chapter.
(d) To carry out its duties and responsibilities, the board is
authorized to employ such personnel, including legal counsel,
experts and consultants, as it deems necessary. In addition, the
board, within the appropriations provided for by the Legislature,
may conduct or contract for research and studies and is entitled to
the use of the services, facilities and personnel of any agency,
institution, school, college or university of this state.
(e) The director shall within sixty days of a coal mining
fatality or fatalities provide the board with all available reports
regarding such fatality or fatalities.
The board shall review all such reports, receive any
additional information, and may, on its own initiative, ascertain
the cause or causes of such coal mining fatality or fatalities.
Within one hundred twenty days of such review of each such
fatality, the board shall promulgate such rules as are necessary to
prevent the recurrence of such fatality, unless a majority of the quorum present determines that no rules can assist in the
prevention of the specific type of fatality. Likewise, the board
shall annually, not later than July 1, review the major causes of
coal mining injuries during the previous calendar year, reviewing
the causes in detail, and shall promulgate such rules as may be
necessary to prevent the recurrence of such injuries.
Further, the board shall, on or before January 10, of each
year, submit a report to the Governor, President of the Senate and
Speaker of the House, which report shall include, but is not
limited to:
(1) The number of fatalities during the previous calendar
year, the apparent reason for each fatality as determined by the
office of miners' health, safety and training and the action, if
any, taken by the board to prevent such fatality;
(2) Any rules promulgated by the board during the last year;
(3) What rules the board intends to promulgate during the
current calendar year;
(4) Any problem the board is having in its effort to
promulgate rules to enhance health and safety in the mining
industry;
(5) Recommendations, if any, for the enactment, repeal or
amendment of any statute which would cause the enhancement of
health and safety in the mining industry;
(6) Any other information the board deems appropriate;
(7) In addition to the report by the board, as herein
contained, each individual member of said board has right to submit
a separate report, setting forth any views contrary to the report
of the board, and the separate report, if any, shall be appended to
the report of the board and be considered a part thereof.
(f) The board shall be invested with the authority of issuing
interpretive opinions about issues strictly pertaining to its
duties, previous decisions and any other matters under the
jurisdiction of the board. A unanimous vote is required for any
interpretive opinion by the board.
§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 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 pursuant to section six, article six of this chapter.
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.
(h) The administrator shall assist West Virginia Diesel
Commission, Technical Review Committee, Board of Coal Mine Health
and Safety, Board of Miner, Training and Certification, and the
Mine Safety Technology Task Force and serve as legislative liaison
for budgetary issues. In preparing the annual budgets and
operations costs for the West Virginia Diesel Equipment Commission,
Technical Review Committee, Board of Coal Mine Health and Safety,
Board of Miner Training and Certification, and the Mine Safety
Technology Task Force, the Administrator shall rely upon the moneys
deposited in the Health and Safety Fund pursuant to section twenty-
one, article one of this code. Further, the Administrator shall
serve as an ex officio, nonvoting member for the West Virginia Diesel Commission, Technical Review Committee, Board of Coal Mine
Health and Safety, Board of Miner, Training and Certification, and
the Mine Safety Technology Task Force.
(i) The administrator is hereby authorized to expend the
moneys in the Health, Safety and Training Fund pursuant to section
twenty-one, article one for the administration, operation and
attendant costs of implementing the West Virginia Diesel
Commission, Technical Review Committee, Board of Coal Mine Health
and Safety, Board of Miner, Training and Certification, and the
Mine Safety Technology Task Force. Such operations shall include
mine health and safety, research, education and training programs
as determined by the entities.
(j) The administrator shall submit to each board or commission
for approval the proposed budget before submitting it to the
Legislature.
§22A-6-7. Coal mine safety and technical review committee;
membership; method of nomination and appointment;
meetings; quorum; powers and duties of the
committee; powers and duties of the board of coal
mine health and safety.
(a) There is hereby continued the state coal mine safety and
technical review committee. The purposes of this committee are to:
(1) Assist the board of coal mine health and safety in the development of technical data relating to mine safety issues,
including related mining technology;
(2) Provide suggestions and technical data to the board and
propose rules with general mining industry application;
(3) Accept and consider petitions submitted by individual mine
operators or miners seeking site-specific rule making pertaining to
individual mines and make recommendations to the board concerning
such rule making; and
(4) Provide a forum for the resolution of technical issues
encountered by the board safety education programs.
(b) The committee shall consist of two members who shall be
residents of this state, and who shall be appointed as hereinafter
specified in this section:
(1) The Governor shall appoint one member to represent the
viewpoint of the coal operators in this state from a list
containing one or more nominees submitted by the major trade
association representing coal operators in this state within thirty
days of submission of such nominee or nominees.
(2) The Governor shall appoint one member to represent the
viewpoint of the working miners of this state from a list
containing one or more nominees submitted by the highest ranking
official within the major employee organization representing coal
mines within this state within thirty days of submission of the
nominee or the nominees.
(3) The members appointed in accordance with the provisions of
subdivisions (1) and (2) of this subsection shall be initially
appointed to serve a term of three years. The members serving on
the effective date of this article may continue to serve until
their terms expire.
(4) The members appointed in accordance with the provisions of
subdivisions (1) and (2) of this subsection may be, but are not
required to be, members of the board of coal mine health and
safety, and shall be compensated on a per diem basis in the same
amount as provided in section ten of this article, plus all
reasonable expenses.
(c) The committee shall meet at least once during each
calendar month, or more often as may be necessary.
(d) A quorum of the committee shall require both members, and
the committee may only act officially by a quorum.
(e) The committee may review any matter relative to mine
safety and mining technology, and may pursue development and
resolution of issues related thereto. The committee may make
recommendations to the board for the promulgation of rules with
general mining industry application. Upon receipt of a unanimous
recommendation for rule making from the committee and only thereon,
the board may adopt or reject such rule, without modification
except as approved by the committee: Provided, That any adopted
rule shall not reduce or compromise the level of safety or protection below the level of safety or protection afforded by
applicable statutes and rules. When so promulgated, such rules
shall be effective, notwithstanding the provisions of applicable
statutes.
(f) (1) Upon application of a coal mine operator, or on its
own motion, the committee has the authority to accept requests for
site-specific rule making on a mine-by-mine basis, and make
unanimous recommendations to the board for site-specific rules
thereon. The committee has authority to approve a request if it
concludes that the request does not reduce or compromise the level
of safety or protection afforded miners below the level of safety
or protection afforded by any applicable statutes or rules. Upon
receipt of a request for site-specific rule making, the committee
may conduct an investigation of the conditions in the specific mine
in question, which investigation shall include consultation with
the mine operator and authorized representatives of the miners.
Such authorized representatives of the miners shall include any
person designated by the employees at the mine, persons employed by
an employee organization representing one or more miners at the
mine, or a person designated as a representative by one or more
persons at the mine.
(2) If the committee determines to recommend a request made
pursuant to subdivision (1) of this subsection, the committee shall
provide the results of its investigation to the board of coal mine health and safety along with recommendations for the development of
the site-specific rules applicable to the individual mine, which
recommendations may include a written proposal containing draft
rules.
(3) Within thirty days of receipt of the committee's
recommendation, the board shall adopt or reject, without
modification, except as approved by the committee, the committee's
recommendation to promulgate site-specific rules applicable to an
individual mine adopting such site-specific rules only if it
determines that the application of the requested rule to such mine
will not reduce or compromise the level of safety or protection
afforded miners below that level of safety or protection afforded
by any applicable statutes. When so promulgated, such rules shall
be effective notwithstanding the provisions of applicable statutes.
(g) The board shall consider all rules proposed by the coal
mine safety and technical review committee and adopt or reject,
without modification, except as approved by the committee, such
rules, dispensing with the preliminary procedures set forth in
subdivisions (1) through (7), subsection (a), section five; and, in
addition, with respect to site-specific rules also dispensing with
the procedures set forth in subdivisions (4) through (8),
subsection (c), section four of this article.
(h) In performing its functions, the committee has access to
the services of the coal mine health and safety administrator appointed under section six of this article. The director shall
make clerical support and assistance available in order that the
committee can carry out its duties. Upon the request of both
members of the committee, the health and safety administrator shall
draft proposed rules and reports or make investigations.
(i) The powers and duties provided for in this section for the
committee are not intended to replace or precondition the authority
of the board of coal mine health and safety to act in accordance
with sections one through six and eight through ten of this
article.
(j) Appropriations for the funding of the committee and to
effectuate this section shall be made to a budget account hereby
established for that purpose in the General Revenue Fund. Such
account shall be separate from any accounts or appropriations for
the office of miners' health, safety and training.
ARTICLE 7. BOARD OF MINER TRAINING, EDUCATION AND CERTIFICATION.
§22A-7-4. Board of miner training, education and certification
continued; membership; method of appointment; terms.
(a) There is hereby continued a board of miner training,
education and certification, which consists of seven members, who
are selected in the following manner:
(1) One member shall be appointed by the Governor to represent
the viewpoint of surface mine operators in this state. When such
member is to be appointed, the Governor shall request from the major association representing surface coal operators in this state
a list of three nominees to the board. The Governor shall select
from said nominees one person to serve on the board. For purposes
of this subsection, the major association representing the surface
coal operators in this state is that association, if any, which
represents surface mine operators accounting for over one half of
the coal produced in surface mines in this state in the year prior
to that year in which the appointment is made.
(2) Two members shall be appointed by the Governor to
represent the interests of the underground operators of this state.
When said members are to be appointed, the Governor shall request
from the major association representing the underground coal
operators in this state a list of six nominees to the board. The
Governor shall select from said nominees two persons to serve on
the board. For purposes of this subsection, the major association
representing the underground operators in this state is that
association, if any, which represents underground operators
accounting for over one half of the coal produced in underground
mines in this state in the year prior to that year in which the
appointments are made.
(3) Three members shall be appointed by the Governor who can
reasonably be expected to represent the interests of the working
miners in this state. If the major employee organization
representing coal miners in this state is divided into administrative districts, the employee organization of each
district shall, upon request by the Governor, submit a list of
three nominees for membership on the board. If such major employee
organization is not so divided into administrative districts, such
employee organization shall, upon request by the Governor, submit
a list of twelve nominees for membership on the board. The
Governor shall make such appointments from the persons so
nominated: Provided, That in the event nominations are made by
administrative districts, not more than one member shall be
appointed from the nominees of any one district unless there are
less than three such districts in this state.
(4) The seventh member of the board, who serves as chair,
shall be the director of the office of miners' health, safety and
training The Director of the Office of Miner's Health, Safety and
Training or his or her designee shall serve as a nonvoting ex
officio member. The Health and Safety Administrator of the Board
of Coal Mine Health and Safety shall serve as a member of the board
as an ex officio nonvoting member.
(5) All appointments made by the Governor under this section
shall be with the advice and consent of the Senate: Provided, That
persons so appointed while the Senate of this state is not in
session are permitted to serve up to one year in an acting
capacity, or until the next session of the Legislature, whichever
is less.
(b) The board shall be appointed by the Governor. Members
serving on the effective date of this article may continue on the
board until their terms expire. Appointed members serve for a term
of three years. The board shall meet at the call of the chair, at
the call of the director, or upon the request of any two members of
the board: Provided, That no meeting of the board for any purpose
shall be conducted unless the board members are notified at least
five days in advance of a proposed meeting. In cases of an
emergency, members may be notified of a board meeting by the most
appropriate means of communication available.
(c) Whenever a vacancy on the board occurs, appointments shall
be made in the manner prescribed in this section: Provided, That
in the case of an appointment to fill a vacancy nominations shall
be submitted to the Governor within thirty days after the vacancy
occurs. The vacancy shall be filled by the Governor within thirty
days of receipt of the list of nominations.
(d) Each appointed member of the board shall be paid the same
compensation, and each member of the board shall be paid the
expense reimbursement, as is paid to members of the Legislature for
their interim duties as recommended by the citizens legislative
compensation commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties. Any
such amounts shall be paid out of the State Treasury upon a
requisition upon the State Auditor, properly certified by such members of the board.
(e) A quorum of the board is four members, with two
representing the viewpoint of the operators and two representing
the viewpoint of the labor organization. The board may act
officially by a majority of those members who are present. No vote
of the board may be taken unless all six members are present.
(f) The chair of the board shall be a nonvoting member. In
performing its functions, the board shall have access to the
services of the Board of Coal Mine Health and Safety. The board
shall make administrative support and assistance available pursuant
to section six, article six of this chapter to enable the board to
carry out its duties. Provided, That in cases of a tie, the chair
shall cast the deciding vote on the issue or issues under
consideration
(g) The director of the office of miners' health, safety and
training shall select a member of the office's staff to serve as
the secretary to the board and the secretary shall be present or
send an authorized representative to all meetings of the board.
§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. The 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 classifications 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 the standards shall be
consistent with the provisions of section seven of this article.
Prior to issuing the standards, the board shall conduct public
hearings at which the parties who may be affected by its actions
may be heard. The 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 in this article or any other provision of this code.
(f) The board may also, from time to time, conduct any
hearings and other oversight activities 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, consider two certificates issued by this
state to be of equal value or consider 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.
(i) The board shall be invested with the authority of issuing
interpretive opinions about issues strictly pertaining to its
duties, previous decisions and any other matters under the
jurisdiction of the board. A unanimous vote is required for any
interpretive opinion by the board.
§22A-7-6. Duties of the director and office.
The director shall be empowered to promulgate, pursuant to
chapter twenty-nine-a of this code, such reasonable rules as are
necessary to establish a program to implement the provisions of
this article. Such program shall include, but not be limited to,
implementation of a program of instruction in each of the miner
occupational specialties and the conduct of examinations to test
each applicant's knowledge and understanding of the training and
instruction which he or she is required to have prior to the
receipt of a certificate.
The director is authorized and directed to utilize state mine
inspectors, mine safety instructors, the state mine foreman
examiner, private and public institutions of education and such
other persons as may be available in implementing the program of
instruction and examinations.
The director may, at any time, make such recommendations or
supply such information to the board as he or she may deem
appropriate.
The director will supply any and all information upon request
of the board as long as the information is not in violation of any
other laws.
The director is authorized and directed to utilize such state
and federal moneys and personnel as may be available to the office
for educational and training purposes in the implementation of the
provisions of this article.
ARTICLE 11. MINE SAFETY TECHNOLOGY.
§22A-11-2. Mine Safety Technology Task Force continued;
membership; method of nomination and appointment.
(a) The Mine Safety Technology Task Force created and existing
under the authority of the director pursuant to the provisions of
section six, article one of this chapter is continued as provided
by this article.
(b) The task force shall consist of nine seven members who are
appointed as 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 these 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 position on the task force. All nominees shall be persons
with special experience and competence in coal mine health and
safety. There shall be submitted with the 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 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 health and safety administrator pursuant to section
six, article six of this chapter, shall serve as a member of the
task force as an ex officio, nonvoting member. 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 any secretarial, clerical,
technical, research and other services that 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 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.
(e) Each member of the task force shall be paid the expense
reimbursement, as is paid to members of the Legislature for their
interim duties as recommended by the Citizens Legislative
Compensation Commission and authorized by law for each day or
portion thereof engaged in the discharge of official duties. In
the event the expenses are paid by a third party, the member shall
not be reimbursed by the state. The reimbursement shall be paid
out of the State Treasury upon a requisition upon the State
Auditor, properly certified by the Office of Miners' Health, Safety
and Training. An employer shall not prohibit a member of the task
force from exercising leave of absence from his or her place of
employment in order to attend a meeting of the task force or a
meeting of a subcommittee of the task force, or to prepare for a
meeting of the task force, any contract of employment to the contrary notwithstanding.
(f) The Director of the Office of Miner's Health, Safety and
Training or his or her designee shall serve as a ex officio,
nonvoting member.
§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 2006, 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 rules promulgated in accordance with the 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 to 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 July 1 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 rules promulgated in accordance with the 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 considers
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.
(f) Appropriations of the funding of the task force and to
effectuate the purposes of this article shall be made to a budget
account hereby established for that purpose pursuant to section
six, article six of this code. Such account shall be separate from
any accounts or appropriations for the Office of Miners' Health,
Safety and Training.
(g) In performing its functions, the task force shall have
access to the services of the Board of Coal Mine Health and Safety.
The board shall make administrative support and assistance pursuant
to section six, article six of the chapter available to enable the
task force to carry out its duties.
NOTE: The purpose of this bill is to change the composition of
the Board of Coal Mine Health and Safety.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.