H. B. 2807
(By Delegates Staton, Collins, Reed, Linch,
Tribett, Whitman and Manuel

(Originating in the House Committee on the Judiciary)

[March 31, 1993]

A BILL 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; and to amend and reenact section nineteen, article one-a, chapter twenty-two-a of said code, 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; and providing authority and procedures for the director to pursue alternative methods of enforcement of the imposition of civil penalties.

Be it enacted by the Legislature of West Virginia:
That article five, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section two;and that section nineteen, article one-a, chapter twenty-two-a of said code 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 civil penalty by the ~~commissioner~~ director under subdivision (3) of this subsection, which penalty shall be not more than three thousand dollars, for each such violation. Each such violationshall constitute a separate offense. In determining the amount of the penalty, the ~~commissioner~~ 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 ~~this commissioner~~ 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 ~~commissioner~~ 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 ~~commissioner~~ director has determined, by a decision incorporating his findings of fact therein, that a violation didoccur, 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) (A) If the person against whom a civil penalty is assessed fails to pay the penalty within the time prescribed in such order, the ~~commissioner~~ director ~~shall~~ 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 ~~commissioner~~ 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 ~~commissioner~~ director or it may remand the proceedings to the ~~commissioner~~ 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 attorney general,attorneys appointed for the commissioner may appear for and represent him in any action to enforce an order assessing civil penalties under this subdivision.
(B) In addition to the authority to file a petition for enforcement, if an operator against whom a civil penalty is assessed fails to pay the penalty within the time prescribed in such order, the director shall issue an order requiring the operator or its agent to cause immediately all persons to be withdrawn from, and to be prohibited from entering, the mine from which the penalties originated: Provided, That no order causing withdrawal from, and prohibiting entry to, the mine shall issue under this subsection unless the operator has been served with notice, by the director or his authorized representative, by certified mail, return receipt requested, advising the operator of the unpaid penalty, and that at the end of sixty days from service of the notice, an order causing withdrawal from, and prohibiting entry to, the mine shall issue: Provided, however, That the operator to whom such notice is issued shall have thirty days from receipt thereof to request, by certified mail, return receipt requested, a public hearing as to whether the order should issue. An order causing withdrawal from and prohibiting entry to, the mine issued under this subsection shall remain in effect until the unpaid penalty is paid in full.
(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 finaldecision 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 ~~commissioner~~ 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 certificationsheld 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 ~~commissioner~~ 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 ~~commissioner~~ 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 ~~commissioner~~ 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 ~~commissioner~~ 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.