H. B. 2720
(By Delegates Pethtel, Linch, Fragale,
Tribett and Compton)
[Introduced March 25, 1993; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend chapter twenty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article twelve, relating
to construction and maintenance projects at sites at which
hazardous chemicals and materials are present; providing a
short title; setting out legislative intent and findings;
defining certain terms; requiring a notice and a plan to be
filed with the commissioner of labor; setting standards for
certifying workers to perform maintenance and construction
work where hazardous or toxic chemical substances and
materials are involved; giving the commissioner of labor the
authority to publish findings in the state register to
prescribe certification standards and training requirements
for workers; certification of workers; exemptions;
enforcement of requirements by the commissioner of labor;
defining violations and providing penalties for violation.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article twelve, to read
as follows:
ARTICLE 12. Hazardous chemicals and materials construction and
Building Craft Protection Act.
§21-12-1. Short title.
This article shall be known as and may be cited as the
"Hazardous Chemical and Materials Construction and Building Craft
Protection Act."
§21-12-2. Legislative intent and findings.
It is the intent of the Legislature to increase the level of
safety for persons working on and near construction projects
which involve the risk of exposure to dangerous chemicals and
likewise to protect the public and the environment from the
dangers that may result from the absence of skilled workers in
and about such construction projects.
The Legislature finds that there are plant sites throughout
the state at which hazardous or toxic chemical substances and
materials are in regular use and in order to provide for the
maintenance and modernization of these plant sites and in order
to introduce new and emerging technologies at these plant sites,
it is necessary and desirable that maintenance, repair and
construction projects be carried out. The Legislature also finds
that there is a possibility, in some cases a probability and in
other cases a necessity, that one or more workers will be exposedto one or more of these hazardous or toxic chemical substances
and materials and that the potential exists in many of the
projects for these substances and materials to come into contact
with one or more other, typically benign, substances, the
combination of which creates or may create more hazardous
conditions which expose workers to injury and which threaten the
health and safety of the workers at or near the site of these
projects. The Legislature further finds that the danger of
exposure can arise at sites where people are employed in the
building and construction crafts either as skilled or unskilled
workers and that workers involved in these projects should be
fully advised of the potential for exposure to dangerous and
toxic substances and materials and fully trained in the means of
minimizing the instances in which exposure may occur. The
Legislature also finds that the performance of building and
construction crafts in these projects requires the attention of
craftsmen and craftswomen certified in performing the crafts to
be aware of the risks involved and that every worker present,
whether assisting in, performing or supervising the performance
of any craft must have knowledge of the risks at the worksite and
a proper means of assisting in, performing or supervising the
performance of these crafts and they must be assured that those
working near every craft worker have this knowledge. To that
end, the Legislature, relying upon the expertise inherent in the
office of the commissioner, hereby prescribes a means of
achieving the levels of knowledge, skill and safety required inthose circumstances which are most critical and subject to prompt
improvement.
§21-12-3. Definitions.
(a) "Building craft," for the purposes of this article,
means:
(1) Construction, maintenance and repair of boilers;
(2) Construction, maintenance and repair of coded pressure
vessels;
(3) Installation of process, power plant, air, oil,
gasoline, chemical or other kinds of piping and boilers and coded
pressure vessels using joining methods of thread, weld or solvent
weld or mechanical methods;
(4) Erection and fabrication of structural steel;
(5) Setting, installation and maintenance of motors, pumps
and other shaft driven devices;
(6) Fabrication, installation and maintenance of sheet metal
structures;
(7) Operation of heavy equipment including cranes;
(8) Installation, construction and maintenance of elevators;
(9) Carpentry and joiners;
(10) Masonry, including brick and block construction,
concrete and cement finishing, or coating of structures;
(11) Insulation of piping, structural steel, boilers and
coded pressure vessels; and
(12) Removal, maintenance, clean-up and disposal of
hazardous or toxic chemicals or materials.
(b) "Commissioner" means the commissioner of the division of
labor.
§21-12-4. Notice required for maintenance and construction
projects.
On and after the first day of January, one thousand nine
hundred ninety-four, before any person starts a maintenance,
repair project or a construction project of an aggregate cost of
one hundred thousand dollars or more and not otherwise exempt
from the provisions of this article, involving the risk of
exposure to a hazardous or toxic chemical substance or material
included on the list maintained pursuant to section eighteen,
article three, chapter twenty-one of this code by a person
performing a building craft at the project, he or she shall file
with the commissioner a construction plan for the work which
meets the standards required in this article.
§21-12-5. Approval of plans; standards required.
A plan required under the provisions of section four of this
article which provides for the conduct of the work by persons
certified under the provisions of this article to perform each
building craft in or near hazardous or toxic chemical substances
and materials shall be approved by the commissioner.
A plan may also provide for work by uncertified persons.
work by uncertified persons shall be limited to tasks assisting
certified persons. The commissioner shall approve a plan
utilizing uncertified persons only if each uncertified person in
a particular craft is to be under the direct supervision of acertified person in the craft and each certified person will not
be assisted by (a) more than one uncertified person or (b) by not
more than the number of uncertified persons in a particular craft
as the commissioner determines may be safely present at, assist
at and be supervised at the worksite by one certified person in
that craft.
The commissioner may also approve the plan submitted without
requiring the presence of certified persons where the applicant
satisfies the commissioner that the persons who will do the work
are suited by training and experience to safely conduct and
perform the work notwithstanding the lack of certification. The
commissioner may issue a policy for the training and experience
he or she requires in lieu of certification. The policy shall
not require a level of proficiency, skill or knowledge greater
than that required for certification.
§21-12-6. Commissioner's finding; certification standards and
training.
On or before the first day of January, one thousand nine
hundred ninety-four, the commissioner shall publish in the state
register a finding stating the level of training and experience
and the areas of specialized knowledge and training required
within each of the crafts set forth in subsection (b) of section
three of this article to achieve and to maintain certification
under this article. In making the finding, the commissioner
shall be satisfied that a worker possessing the requirements for
certification specified by the finding should, with properequipment, assistance and supervision, be fully qualified to
perform and conduct his or her craft in and about the risks of
exposure and injury from hazardous or toxic chemical substances
and materials to which this article applies and that the
certified person and those uncertified persons authorized to
assist certified persons have adequate knowledge, training and
experience and the opportunity to perform the work assigned to
them at the worksite in the presence of hazardous or toxic
chemicals or materials in a reasonably safe and effective manner.
In the finding, the commissioner shall list all schools,
seminars and courses of study which he deems to be available
within the state at which any training required for certification
may be completed. The commissioner shall also list the nature
and extent of past experience required for certification or the
amount of experience required for certification or to be
recognized in the place and stead of formal instruction required
for certification and the means by which a person may acquire and
present satisfactory evidence that he or she is entitled to be so
certified within the craft or field for which the person makes
application.
The commissioner may amend the finding required by this
section.
To prepare the finding or any amendment thereof, the
commissioner shall give notice of, hold hearings on and receive
testimony and documentary evidence as may be tendered to or
required by the commissioner to make the finding required or toamend a finding. The commissioner shall file in the state
registry a statement of the facts and conclusions upon which the
finding or any amendment is based.
The statement of facts and conclusions and the finding or
amendment are not subject to judicial review.
§21-12-7. Certification.
Persons who file an application under the finding and meet
the requirements of the finding provided for in section six of
this article shall be certified to perform work subject to this
article which is within the craft for which they apply. Initial
certification shall be valid for a period of two years from the
date of the certificate. The certificate may be renewed by the
filing of an application for renewal which demonstrates that the
person has met the requirements for renewal in the applicant's
craft set out in the finding made under section six of this
article. Whenever the commissioner is unable to determine the
eligibility of the person making application from the application
and other documents submitted in support thereof, further proof
of the qualifications may be required by the commissioner:
Provided,
That all such further examinations shall be held,
conducted and graded pursuant to nondiscriminatory standards set
forth in a procedural rule promulgated by the commissioner.
§21-12-8. Nonconforming projects and work prohibited.
On and after the first day of April, one thousand nine
hundred ninety-four, a person may not start or carry forward a
maintenance, repair or construction project subject to theprovisions of this article except pursuant to a plan approved by
the commissioner as provided in section four of this article. A
person may not perform work within a building craft in a
maintenance or construction project who is not certified pursuant
to this article unless the work is performed under one or more of
the exemptions contained in or granted pursuant to this article.
§21-12-9. Additional exemptions authorized.
In the finding required by section six of this article or by
an amendment thereto, the commissioner may from time to time
exempt by class certain additional projects from the provisions
of this article for any of the following reasons:
(a) That the minimum cost of the projects subject to this
article ought be raised.
(b) That a particular substance or material included in the
list maintained pursuant of chapter twenty-one, article three,
section eighteen of this code need not be covered by the article
or need not be so covered unless certain other circumstances
enumerated by the commissioner shall be also present in the
project.
(c) That certified crafts are not required in the certain
class of projects set forth in the exemption.
(d) That the safety of the worksite, public safety and the
protection of the environment do not require the application of
the article in certain circumstances set forth in the exemption.
§21-12-10. Enforcement.
The provisions of this article may be enforced by thefollowing means:
(a) The commissioner may issue and cause to be served on any
person owning the work site or on any person known to intend to
start a project or who is controlling or directing the execution
of a project subject to and not in or not intended to be in
conformity with the provisions of this article, a cease and
desist order which shall be effective when issued and served.
(b) Any person having knowledge of the intent to start a
project or having knowledge of the actual starting of a project
subject to and not in or not intended to be in conformity with
the provisions of this article may apply to the commissioner for
a cease or desist order or to the circuit court or any judge
thereof of the county wherein any part of the project is or is to
be performed for an injunction restraining the project, on terms
and conditions as the court or judge shall provide.
(c) The commissioner may apply to the circuit court of any
county in which any part of a project is or is to be performed
for an injunction restraining the project or compelling obedience
to the commissioner's previously issued cease and desist order.
On the commissioner's motion, an injunction shall be granted ex
parte; the court or judge may set forth in the injunction a
penalty for its disregard as the court deems necessary to protect
the safety of the worksite, the public health and welfare and the
environment.
§21-12-11. Violations; penalties; notice to prosecuting
attorney.
It is unlawful, with the intent to evade the provisions of
this article, to own, start, or control the execution of or to
carry on any maintenance, repair or construction project
involving the risk of exposure to a toxic or hazardous chemical
substance or material included on the list maintained pursuant to
chapter twenty-one, article three, section eighteen of this code
by a person performing a building craft in the project except in
conformity with a plan approved by the commissioner of labor or
pursuant to an exemption made by or grated pursuant to this
article. Each day on which the prohibited conduct is engaged in
shall constitute a separate offense. Any person convicted of the
violation of this section shall be guilty of a misdemeanor. If
it be alleged in the warrant or indictment and proved or admitted
that the person convicted under this section was the owner or was
in control of the execution of the project, such person shall be
fined not less than one thousand dollars and not more than ten
thousand dollars for each offense of which convicted; if it is
not alleged and proved or admitted that the person convicted was
the owner of or was in control of execution of the project, such
person shall be fined not less than one hundred dollars and not
more than one thousand dollars for each offense of which
convicted.
It is the duty of the commissioner of labor to promptly give
written notice of any probable violation of this section to the
prosecuting attorney of the county in which such violation is
believed to have occurred.
NOTE: The purpose of this bill is to establish a system to
certify workers to work on maintenance and construction projects
at plant sites involving the risk of exposure to hazardous and
toxic chemicals and materials. The bill requires that
maintenance and construction projects employ certified craft
workers and that plans for these projects be approved by the
commissioner of labor. The bill also provides that the
commissioner of labor publish findings which provide the
qualifications for certification. Certain noncertified workers
are exempt under the bill. The bill provides for enforcement and
it provides penalties for violations.
This article is new; therefore, strike-throughs and
underscoring have been omitted.