ENROLLED
H. B. 2807
(By Delegates Staton, Collins, Reed, Linch,
Tribett, Whitman and Manuel
[Passed April 10, 1993; in effect from passage.]
AN ACT to amend article five, chapter twenty-two of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
two; to amend and reenact section nineteen, article one-a,
chapter twenty-two-a of said code; and to amend and reenact
section sixty-three, article two of said chapter, all
relating to the powers and authority of the director of the
office of miners' health, safety and training; transferring
certain review functions of the director to the board of
appeals; authorizing the director to promulgate a rule
setting forth the procedure for assessing certain civil
penalties; the revision of such rule; the director's
approval and permit to open or reopen mine; certificate of
approval for operator of mine; fees; revocation of
certificate of approval; notice prior to revocation; effect
of revocation; printing statutory provisions on permit; and
district mine inspector's inspections.
Be it enacted by the Legislature of West Virginia:
That article five, chapter twenty-two of the code of WestVirginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section two;
that section nineteen, article one-a, chapter twenty-two-a be
amended and reenacted; and that section sixty-three, article two
of said chapter be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 5. BOARD OF APPEALS.
§22-5-2. Powers transferred to the board of appeals.
(a) There are hereby transferred to the board of appeals
all functions of the director of the office of miners' health,
safety and training relating to the review of orders and notices
as set forth in section fifteen, article one-a, chapter
twenty-two-a.
(b) There are hereby transferred to the board of appeals
all functions of the director of the office of miners' health,
safety and training relating to the review of penalty assessments
as set forth in subdivision (3), subsection (a), section
nineteen, article one-a, chapter twenty-two-a of this code.
(c) Judicial review of decisions by the board of appeals
shall be available and conducted in the same fashion as set forth
in section seventeen, article one-a, chapter twenty-two-a of this
code.
CHAPTER 22A. MINES AND MINERALS.
ARTICLE 1A. ADMINISTRATION; ENFORCEMENT.
§22A-1A-19. Penalties.
(a) (1) Any operator of a coal mine in which a violation
occurs of any health or safety rule or regulation or who violates
any other provisions of this law shall be assessed a civilpenalty by the director under subdivision (3) of this
subsection, which penalty shall be not more than three thousand
dollars, for each such violation. Each such violation shall
constitute a separate offense. In determining the amount of the
penalty, the director shall consider the operator's history of
previous violations, the appropriateness of such penalty to the
size of the business of the operator charged, the gravity of the
violation and the demonstrated good faith of the operator charged
in attempting to achieve rapid compliance after notification of
a violation. Not later than the thirtieth day of June, one
thousand nine hundred ninety-three, the director shall promulgate
as a rule the procedure for assessing such civil penalties in
effect as of the fifteenth day of January, one thousand nine
hundred ninety-three, without regard to the provisions of chapter
twenty-nine-a of this code:
Provided,
That any revisions to such
rules after this date shall be promulgated as in the case of
legislative rules in accordance with the provisions of chapter
twenty-nine-a of this code.
(2) Any miner who knowingly violates any health or safety
provision of this chapter or health or safety rule or regulation
promulgated pursuant to this chapter shall be subject to a civil
penalty assessed by the director under subdivision (3) of this
subsection which penalty shall not be more than two hundred fifty
dollars for each occurrence of such violation.
(3) A civil penalty shall be assessed by the director only
after the person charged with a violation under this chapter or
rule or regulation promulgated pursuant to this chapter has been
given an opportunity for a public hearing and the director hasdetermined, by a decision incorporating his findings of fact
therein, that a violation did occur, and the amount of the
penalty which is warranted, and incorporating, when appropriate,
an order therein requiring that the penalty be paid. Any hearing
under this section shall be of record.
(4) If the person against whom a civil penalty is assessed
fails to pay the penalty within the time prescribed in such
order, the director may file a petition for enforcement of such
order in any appropriate circuit court. The petition shall
designate the person against whom the order is sought to be
enforced as the respondent. A copy of the petition shall
forthwith be sent by certified mail, return receipt requested, to
the respondent and to the representative of the miners at the
affected mine or the operator, as the case may be, and thereupon
the director shall certify and file in such court the record
upon which such order sought to be enforced was issued. The
court shall have jurisdiction to enter a judgment enforcing,
modifying, and enforcing as so modified, or setting aside in
whole or in part the order and decision of the director or it
may remand the proceedings to the director for such further
action as it may direct. The court shall consider and determine
de novo all relevant issues, except issues of fact which were or
could have been litigated in review proceedings before a circuit
court under section eighteen of this article, and upon the
request of the respondent, such issues of fact which are in
dispute shall be submitted to a jury. On the basis of the jury's
findings the court shall determine the amount of the penalty to
be imposed. Subject to the direction and control of the attorneygeneral, attorneys appointed for the director may appear for and
represent him in any action to enforce an order assessing civil
penalties under this subdivision.
(b) Any operator who knowingly violates a health or safety
provision of this chapter or health or safety rule or regulation
promulgated pursuant to this chapter, or knowingly violates or
fails or refuses to comply with any order issued under section
thirteen of this article, or any order incorporated in a final
decision issued under this article, except an order incorporated
in a decision under subsection (a) of this section or subsection
(b), section twenty of this article, shall be assessed a civil
penalty by the director under subdivision (3), subsection (a) of
this section, of not more than five thousand dollars, and for a
second or subsequent violation assessed a civil penalty of not
more than ten thousand dollars.
(c) Whenever a corporate operator knowingly violates a
health or safety provision of this chapter or health or safety
rules or regulations promulgated pursuant to this chapter, or
knowingly violates or fails or refuses to comply with any order
issued under this law or any order incorporated in a final
decision issued under this law, except an order incorporated in
a decision issued under subsection (a) of this section or
subsection (b), section twenty of this article, any director,
officer or agent of such corporation who knowingly authorized,
ordered or carried out such violation, failure or refusal, shall
be subject to the same civil penalties that may be imposed upon
a person under subsections (a) and (b) of this section.
(d) Whoever knowingly makes any false statement,representation or certification in any application, record,
report, plan or other document filed or required to be maintained
pursuant to this law or any order or decision issued under this
law, shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than five thousand dollars or
imprisoned in the county jail not more than six months, or both
fined and imprisoned. The conviction of any person under this
subsection shall result in the revocation of any certifications
held by him under this chapter which certified him or authorized
him to direct other persons in coal mining by operation of law
and shall bar him from being issued any such license under this
chapter, except a miner's certification, for a period of not less
than one year or for such longer period as may be determined by
the director.
(e) Whoever willfully distributes, sells, offers for sale,
introduces or delivers in commerce any equipment for use in a
coal mine, including, but not limited to, components and
accessories of such equipment, who willfully misrepresents such
equipment as complying with the provisions of this law, or with
any specification or regulation of the director applicable to
such equipment, and which does not so comply, shall be guilty of
a misdemeanor, and, upon conviction thereof, shall be subject to
the same fine and imprisonment that may be imposed upon a person
under subsection (d) of this section.
(f) There is hereby created under the treasury of the state
of West Virginia a special health, safety and training fund. All
civil penalty assessments collected under section nineteen of
this article shall be collected by the director and depositedwith 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 and he is authorized to expend the moneys
in the fund for the administration of this chapter and chapter
twenty-two of this code.
ARTICLE 2. UNDERGROUND MINES.
§22A-2-63. No mine to be opened or reopened without prior
approval of the director of the office of miners'
health, safety and training; certificate of approval;
approval fees; extension of certificate of approval;
certificates of approval not transferable; section to
be printed on certificates of approval.
(a) After the first day of July, one thousand nine hundred
seventy-one, no mine shall be opened or reopened unless prior
approval has been obtained from the director of the division of
health, safety and training, which approval shall not be
unreasonably withheld. The operator shall pay for such approval
a fee of ten dollars, which payment shall be tendered with the
application for such approval: Provided, That mines producing
coal solely for the operator's use shall be issued a permit
without charge if coal production will be less than fifty tons a
year.
Within thirty days after the first day of January of each
year, the holder of such permit to open a mine shall apply for
the extension of such permit for an additional year. Such
permit, evidenced by a document issued by the director, shall be
granted as a matter of right and without charge if, at the time
such application is made, the permit holder is in compliance withthe provisions of section seventy-seven of this article and has
paid or otherwise appealed all coal mine assessments issued to
the mine if operated by the permit holder and imposed under
article one-a, chapter twenty-two-a of this code. Applications
for extension of such permits not submitted within the time
required shall be processed as an application to open or reopen
a mine and shall be accompanied by a fee of ten dollars.
(b) Permits issued pursuant to this section shall not be
transferable.
(c) If the operator of a mine is not the permit holder as
defined in subsection (a) above, then such operator must apply
for and obtain a certificate of approval to operate the mine on
which the permit is held prior to commencing operations. An
operator who is not the permit holder operating such mine on the
effective date of this section must apply for a certificate of
approval on or before the first day of July, one thousand nine
hundred ninety-three. The operator shall pay a fee of ten
dollars, which payment shall be tendered with the application for
approval. Such approval, evidenced by a certificate issued by
the director, shall be granted if, at the time such application
is made, the applicant is in compliance with the provisions of
section seventy-seven of this article and has paid or otherwise
appealed all coal mine assessments imposed on such applicant for
the certificate of approval under article one-a, chapter twenty-
two-a of this code.
(d) In addition to the authority to file a petition for
enforcement under subdivision (4), subsection (a), section
nineteen, article one-a, chapter twenty-two-a of this code, if anoperator holding a certificate of approval issued pursuant to
subsection (c) of this section, against whom a civil penalty is
assessed in accordance with section nineteen, article one-a,
chapter twenty-two-a of this code, and implementing regulations,
and which has become final, fails to pay the penalty within the
time prescribed in such order, the director or the authorized
representative of the director, by certified mail, return receipt
requested, shall send a notice to such operator advising the
operator of the unpaid penalty. If the penalty is not paid in
full within sixty days from the issuance of the notice of
delinquency by the director, then the director may revoke such
operator's certificate of approval: Provided, That such operator
to whom the delinquency notice is issued shall have thirty days
from receipt thereof to request, by certified mail, return
receipt requested, a public hearing held in accordance with the
procedures of section fifteen, article one-a, chapter twenty-two-
a of this code, and implementing regulations, including
application for temporary relief. Once such operator's
certificate of approval is revoked pursuant to this subsection,
such operator shall be prohibited from obtaining any certificate
of approval under the provisions of this section to operate any
other mine until such time as that operator pays the delinquent
penalties that have become final.
(e) The provisions of this section shall be printed on the
reverse side of every permit issued under subsection (a) and
certificate of approval issued under subsection (d) herein.
(f) The district mine inspector shall be contacted for a
pre-inspection of the area proposed for underground mining priorto issuance of any new opening permit approval