Senate Bill No. 273
(By Senators Humphreys, Blatnik, Wiedebusch, Wagner,
Bailey, Holliday, Withers, Schoonover, Grubb and Chernenko)
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[Introduced February 4, 1994; referred to the Committee
on the Judiciary.]
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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 the performance of construction, repair and maintenance work at or near the site of hazardous facilities or toxic chemicals and materials; legislative findings; definitions; requiring workers working with or around hazardous materials to be certified in the work they perform; requiring division of labor to monitor and enforce compliance with the terms of the law; funding the operations of the division of labor in monitoring and enforcing the provisions of this article; placing a duty on contractors to provide information about workers employed by such contractors; requiring the division of labor to make certification standards; describing requirements for certification; providing an exemption from certification for

emergency situations; authorizing the commissioner of division of labor to issue cease and desist orders; authorizing persons having knowledge of violations to seek injunctions; and defining offenses and prescribing criminal penalties with respect thereto.

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. COMMUNITY PROTECTION ACT.
§21-12-1. Short title.
This article shall be known as and may be cited as the "Community Protection Act".
§21-12-2. Legislative intent and findings.
It is hereby declared to be the policy of the state of West Virginia that all contractors desiring to perform construction, maintenance, or repair work in hazardous industries, to-wit: The chemical manufacturing industry, the steam, hydro, and nuclear electric power generating industry and the hazardous waste incineration and removal industry shall, for any such work, employ only workers individually certified as possessing the requisite construction skills and construction experience to ensure capable and skilled craftsmanship in order to safe guard the environment, human health, life, and limb from destruction, disease, death, and injury resulting from unsafe, unskilled andshoddy construction practices.
To effect this policy, it is the intent of the Legislature to increase the level of protection for the environment and to increase the level of safety for persons living near chemical manufacturing plants and steam, hydro, and nuclear electric power generating facilities, and hazardous waste incineration facilities which present a risk of harm, injury or death to persons or the environment in the event of or as a result of: (1) An explosion of high pressure steam; (2) the incineration of hazardous and toxic wastes; or (3) the release of dangerous chemicals that may result from the absence of skilled workers who construct, repair and maintain such facilities.
The Legislature finds that at several plant sites throughout the state hazardous or toxic chemical substances and materials are in regular use and that at several plant sites electricity is generated from the operation of dangerous instrumentalities. From time to time, in order to provide for the maintenance and modernization of such plant sites and the introduction of new and emerging technologies at such plant sites, it is both necessary and desirable that maintenance, repair and construction projects be carried out. The Legislature further finds that such maintenance, repair and construction projects are carried out in many instances by contractors hired by the owners of plant sites and that presently, under the laws of the state of West Virginia, there are insufficient rules and regulations to insure that any such contractor hired by any such owner employ only workersadequately skilled and trained to perform maintenance, repair and construction work in and around plant sites where hazardous industries are operated.
The Legislature recognizes that incident to maintenance, repair and construction work in hazardous industries there is a possibility, and in some cases a probability that substances under high pressure may explode and in the case of chemical manufacturing sites, hazardous or toxic chemical substances and materials may escape, or a combination of such chemicals with benign agents which creates or may create still greater or more numerous opportunities for injury to the health and safety of the general public in the vicinity and to the environment.
It is critical that the public at large be assured that the long term quality of performance and safe operation of major plant processes and equipment is enhanced by high standards of installation, repair and maintenance of plant and equipment. Such projects require the attention of craftsmen and craftswomen who have the skills necessary to perform the work required in a manner which will provide the most security for the public while in the face of the risks attendant upon such work.
The attendant danger requires that every worker present, whether assisting in, performing or supervising the performance of any such work have knowledge of the risks at the work site and a proper means of assisting in, performing or supervising the performance of such work and be assured that those working near every such worker have such knowledge.
To that end, the Legislature hereby prescribes a means of achieving the levels of knowledge, skill and safety among workers employed by contractors hired to perform repair, maintenance and construction projects in hazardous industries in which the Legislature finds the need therefore to be both the most critical and subject to prompt improvement.
§21-12-3. Definitions.
(a) "Commissioner" means the commissioner of the division of labor.
(b) "Work Category" 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, scaffold erection and construction, concrete forming;
(10) Masonry, including brick and block construction;
(11) Cement finishing, or coating of structures;
(12) Insulation of piping, structural steel, boilers and coded, pressure vessels;
(13) Removal, maintenance, clean-up and disposal of hazardous or toxic chemicals or materials;
(14) Painting, and the application or removal of paints, sealers and similar material; and
(15) Such other categories as the commissioner may determine in accordance with subsection (a) of section six hereof.
(c) "Hazardous industry" means the chemical manufacturing industry, the steam, hydro, and nuclear electric power generating industry and the hazardous substance handling, incineration, removal or disposal industry.
(d) "Apprenticeship program" means an apprenticeship program registered with the United States department of labor, bureau of apprenticeship and training.
(e) "Contractor" is synonymous with subcontractor and means any person who in any capacity for compensation, other than as an employee of another, undertakes, offers to undertake, purports to have the capacity to undertake, or submits a bid to an owner or operator of a facility, plant site, or business engaged in one or more hazardous industries or any other person to construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any structure used in or related to a hazardous industry. Contractor includes a construction manager whoperforms management and counseling services for a construction project for a professional fee.
(f) "Person" includes an individual, firm, sole proprietorship, partnership, corporation, association or any other legal entity.
(g) "Worker" means any individual hired or employed by a contractor to construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any structure used in or related to a hazardous industry.
(h) "Division" means the division of labor.
(i) "Cease and desist order" means an order issued by the commissioner pursuant to the provisions of this article.

§21-12-4. Certification required for workers involved in construction, repair and maintenance projects in hazardous industries.

On and after the first day of July, one thousand nine hundred ninety-five, any worker hired by or employed by a contractor to perform construction, repair or maintenance functions in hazardous industries as described in the work categories set forth in subsection (b) of section three and not otherwise exempt from the provisions of this article, shall, before the project commences, be certified by the commissioner as meeting the standards required in this article and as having the skills necessary to perform such work.
§21-12-5. Administrative duties of division; record keeping.
(a) The division and the commissioner shall perform thefollowing administrative duties:
(1) Collect and record all fees;
(2) Maintain records and files;
(3) Issue and receive application forms;
(4) Notify applicants of the results of examinations administered pursuant to this article;
(5) Arrange space for holding examinations and other proceedings;
(6) Issue certification licenses as authorized by this article;
(7) Notify licensees of renewal dates at least thirty days before the expiration date of their certification;
(8) Issue duplicate license upon submission of a written request by the licensee attesting to loss of or the failure to receive the original and payment by the licensee of a fee established by rule adopted by the division;
(9) Answer routine inquiries pertaining to this article;
(10) Maintain files relating to individual licensees;
(11) Arrange for printing and advertising;
(12) Purchase supplies;
(13) Employ additional help when needed;
(14) Perform other services that may be necessary to implement and administer this article;
(15) Provide for necessary inspection, enforcement and investigation to carry out the provisions of this article;
(16) Issue cease and desist orders to persons violating theprovisions of this article.
(b) The commissioner shall keep a record of all actions taken and account for moneys received. All moneys shall be deposited in a special account in the state treasury to be known as the "West Virginia Worker Certification Fund." Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-six, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. Amounts collected which are found from time to time to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.
§21-12-6. Obligations and duties of the contractor.
Any contractor conducting business under the provisions of this article shall maintain, for the commissioner's inspection and copying, a list, in the form and manner prescribed by the commissioner, at each job site in the state of West Virginia where contractor's employee workers are engaged in work covered by this article identifying each worker by name and address and the work category in which each worker is presently certified. Any such contractor shall further certify that each worker so identified is only performing work in the category for which the worker is certified pursuant to the provisions of this article.
§21-12-7. Certification standards and training.
Pursuant to the provisions of chapter twenty-nine-a of this code, the commissioner may adopt rules as are necessary to carry out the provisions of this article. The commissioner shall adopt rules relating to the following:
(a) The areas of specialized knowledge and training required within each of the work categories set forth in subsection (b), section three of this article to achieve and to maintain certification under this article: Provided, That the commissioner shall determine such other categories of specialized knowledge and training as may be necessary to carry out the provisions of this article and shall adopt rules relating thereto;
(b) The content of any examinations for certification in each class;
(c) Procedures for application, examination and certification renewal, and the manner in which the examination will be conducted;
(d) The nature and extent of past experience required or sufficient to fulfill any requirements for certification without examination 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 orshe is entitled to be so certified within the craft or field for which the person makes application: Provided, That completion of an apprenticeship program registered by the United States department of labor, bureau of apprenticeship and training shall be sufficient to fulfill any requirement for certification under this article;
(e) Procedures for worker verification of completion of an apprenticeship program as set forth in subsection (d) of section three hereof;
(f) Procedures by which the commissioner may from time to time exempt work from the provisions of this article.
§21-12-8. Exemptions to certification; emergencies.
(a) Work by uncertified persons shall be limited to tasks assisting certified persons. The commissioner shall allow utilizing uncertified persons only if each uncertified person is to be under the direct supervision of a certified person in the same work category and each uncertified person shall be indentured in an apprenticeship program registered with the United States department of labor, bureau of apprenticeship and training.
(b) Nothing in this article requires the use of certified workers in the event of a sudden emergency presenting an imminent risk of serious injury to property or the environment or serious injury or death to persons.
§21-12-9. Certification.
(a) Persons who file an application under and meet therequirements as provided in section six of this article shall be certified to perform work subject to this article which is within the work category for which they apply. Certification is valid for a period of one year from the date of the certificate.
(b) The cost of such certification may not exceed fifty dollars for the certification period provided in subsection (a).
(c) The certificate may be renewed in the manner provided pursuant to section six of this article: Provided, That the rules for renewal may not be more restrictive than those prescribed for initial certification.
(d) Any individual may, on or before the thirtieth day of September, one thousand nine hundred ninety-five, certify by affidavit to the commissioner in a form and manner prescribed by the commissioner the work category set forth in subsection (b) of section three for which any such individual meets the requirements of section six hereof and pay such certification fee not to exceed fifty dollars and shall be certified by the commissioner without further examination or requirements.
§21-12-10. Nonconforming projects and work prohibited.
On and after the first day of July, one thousand nine hundred ninety-five, no contractor may commence or carry forward a maintenance, repair or construction project subject to the provisions of this article with any employed worker who is not certified pursuant to this article unless such work has been exempted by the commissioner pursuant to this article.

§21-12-11. Violation of article; cease and desist order;

injunction.
(a) Upon a determination by the commissioner that a contractor covered by this article has employed or intends to employ workers not certified, as provided herein, for any construction, repair or maintenance project in a hazardous industry, the commissioner shall issue a cease and desist order and cause it to be served on any person owning the work site or on any person known to intend to commence 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, which order shall be effective when issued and served.
(b) Any person having knowledge of the intent to commence or having knowledge of the actual commencement 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 in the county wherein any part of the project is or is to be performed for an injunction restraining the commencement or carrying forward of the project, on such terms and conditions as the court or judge shall provide: Provided, That the commissioner shall be notified of the date, time and place of any injunction hearing to be held hereunder.
(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 commencement or carrying forward of the project or compelling obedience to thecommissioner's previously issued cease and desist order. On the commissioner's motion, an injunction may be granted ex parte; the court or judge may set forth in the injunction such penalty for its disregard as the court deems necessary to protect the safety of the work site, the public health and welfare and the environment.
(d) Any person served with a cease and desist order may apply to the circuit court of Kanawha County for an order directed to the commissioner to show cause why any such cease and desist order should not be dissolved.
§21-12-12. Criminal penalties; notice to prosecuting attorney.
Any person owning or controlling a site where hazardous industries are operated who permits a contractor to continue to perform work covered by this article on any such site after service of a cease and desist order or any contractor continuing to perform work covered by this article on any such site after service of a cease and desist order is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than ten thousand dollars, or imprisoned in the county jail not more than one month, or both fined and imprisoned. Each day on which the prohibited conduct is engaged in shall be a separate offense. 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 create a mechanism in which to closely regulate work performed in or around hazardous waste or other potentially harmful materials. The bill sets forth a requirement that workers engaged in work around or involving hazardous materials be certified as competent in the particular work they perform. It requires the division of labor to monitor and enforce compliance with the requirements of this article. The article provides that in the first year of operation the division will be funded in its activities by legislative appropriation. However, thereafter, the division is required to collect fees and other moneys from applicable business concerns to fund its operations. The bill places obligations and duties on contractors to provide information about workers it employs while requiring the division to make rules for certification standards. It describes the mechanical requirements for certification while also providing an exemption from certification limited to emergency situations. Further, it authorizes the commissioner of the division of labor to issue cease and desist orders while providing that any person having knowledge of a violation of this article may seek an injunction. Finally, it provides criminal penalties for persons who own or control sites whereupon "hazardous industries" are located when such sites are operated in violation of this article.

This article is new; therefore, strike-throughs and underscoring have been omitted.