COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 493

(By Senator Wagner)

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[Originating in the Committee on Energy , Industry and Mining;

reported February 27, 1996.]

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A BILL to amend and reenact sections nine, eleven, twelve and thirteen, article one, chapter twenty-two-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section sixty-three, article two of said chapter; and to amend and reenact section six, article seven of said chapter, all relating to mine safety instructors; qualifications; employment; compensation; tenure; oath; bond; employment of electrical inspectors; qualifications; salary and expenses; tenure; oath; bond; eligibility for appointment as mine inspector; qualifications; salary and expenses; removal; underground mines; miners' health, safety and training; fees for certificate of approval and permit; providing that the fees collected for certificates of approval and permits be placed in the "miners' health, safety and training fund"; providing for expenditure of moneys placed in the fund; setting forth the responsibility for compliance of operations with the mining laws; notices of violations; clarifying the responsibility of the office of miner's health, safety and training; duties of the director and office; and annual refresher training.

Be it enacted by the Legislature of West Virginia:
That sections nine, eleven, twelve and thirteen, article one, chapter twenty-two-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section sixty-three, article two of said chapter be amended and reenacted; and that section six, article seven of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING; ADMINISTRATION; ENFORCEMENT.

§22A-1-9. Mine safety instructors; qualifications; employment; compensation; tenure; oath; bond.

The office shall employ eleven or more mine safety instructors. To be eligible for employment as a mine safety instructor, the applicant shall be: (1) A citizen of West Virginia, in good health, not less than twenty-five years of age, and of good character, reputation and temperate habits; and (2) a person who has had at least five years' experience in first aid and mine rescue work and who has had practical experience with dangerous gases found in coal mines, and who has a practical knowledge of mines, mining methods, mine ventilation, sound safety practices and applicable mining laws.
In order to qualify for appointment as a mine safety instructor, an eligible applicant shall submit to a written and oral examination, given by the mine inspectors' examining board. The examination shall relate to the duties to be performed by a safety instructor and may, subject to the approval of the mine inspectors' examining board, be prepared by the director.
If the board finds after investigation and examination that the applicant: (1) Is eligible for appointment; and (2) has passed all oral and written examinations with a grade of at least eighty percent, the board shall add such applicant's name and grade to a register of qualified eligible candidates and certify its action to the director. The director may then appoint one of the candidates from the three having the highest grades.
The salary for a mine safety instructor shall be not less than twenty-one thousand six hundred seventy-two thirty-seven thousand two hundred four dollars per year with graduations of five hundred dollars annually thereafter, and shall be fixed by the director, who shall take into consideration ability, performance of duty and experience. Such The instructor shall devote all of his or her time to the duties of the office. No reimbursement for traveling expenses shall be made except on an itemized accounting for such the expenses submitted by the instructor, who shall verify upon oath that such expenses were actually incurred in the discharge of his or her official duties.
Except as expressly provided in this section to the contrary, all provisions of this article relating to the eligibility, qualification, appointment, tenure and removal of mine inspectors are applicable to mine safety instructors.
§22A-1-11. Employment of electrical inspectors; qualifications; salary and expenses; tenure; oath; bond.

The office shall employ five or more electrical inspectors. To be eligible for employment as an electrical inspector, the applicant shall be: (1) A citizen and resident of West Virginia, in good health, not less than twenty-five years of age, and of good character, reputation and of temperate habits; and (2) a person who has had seven years' practical electrical experience in coal mines, or a degree in electrical engineering from an accredited electrical engineering school and one year's practical experience in underground coal mining.
In order to qualify for appointment as a mine electrical inspector, an eligible applicant shall submit to a written and oral examination given by the mine inspectors' examining board. The examination shall relate to the duties to be performed by an electrical inspector. If the board finds after investigation and examination that the applicant: (1) Is eligible for appointment; and (2) has passed all oral and written examinations with a grade of at least ninety percent, the board shall add such the applicant's name and grade to a register of qualified eligible candidates and certify its action to the director. The director may then appoint one of the candidates from the three having the highest grade.
The salary of a mine electrical inspector shall be not less than thirty thousand four hundred eighty forty-five thousand twelve dollars per year with graduations of five hundred dollars annually thereafter, and shall be fixed by the director, who shall take into consideration ability, performance of duty and experience. No reimbursement for traveling expenses shall be made except on an itemized accounting for such the expense submitted by the electrical inspector, who shall verify upon oath that such the expenses were actually incurred in the discharge of his or her official duties.
Mine electrical inspectors, before entering upon the discharge of their duties, shall take and subscribe to the oath and shall execute a bond in the same penal sum, with surety approved by the director, all as is required by this article in the case of mine inspectors.
Except as expressly provided in this section to the contrary, all provisions of this article relating to the eligibility, qualifications, appointment, tenure and removal of mine inspectors are applicable to mine electrical inspectors.
§22A-1-12. Eligibility for appointment as mine inspector; qualifications; salary and expenses; removal.

(a) No person is eligible for appointment as a mine inspector unless, at the time of his or her probationary appointment, he or she: (1) Is a citizen of West Virginia, in good health, not less than twenty-four years of age, and of good character, reputation and temperate habits; (2) has had at least six years' practical experience in coal mines, at least three years of which, immediately preceding his or her original appointment, shall have been in mines of this state: Provided, That graduation from any accredited college of mining engineering shall be considered the equivalent of two years' practical experience; (3) has had practical experience with dangerous gases found in coal mines; and (4) has a good theoretical and practical knowledge of mines, mining methods, mine ventilation, sound safety practices and applicable mining laws.
(b) In order to qualify for appointment as a mine inspector, an eligible applicant shall submit to a written and oral examination by the mine inspectors' examining board and furnish such evidence of good health, character and other facts establishing eligibility as the board may require. If the board finds after investigation and examination that an applicant: (1) Is eligible for appointment; and (2) has passed all written and oral examinations, with a grade of at least eighty percent, the board shall add such the applicant's name and grade to the register of qualified eligible candidates and certify its action to the director. No candidate's name shall remain in the register for more than three years without requalifying.
(c) Salaries of district inspectors shall may not be less than twenty-eight thousand fifty-six forty-three thousand five hundred eighty-eight dollars per year with graduations of five hundred dollars annually thereafter; assistant inspector-at-large, not less than thirty thousand one hundred eight forty-five thousand six hundred forty dollars per year with graduations of five hundred dollars annually thereafter; inspectors-at-large, not less than thirty-one thousand five hundred seventy-two forty-seven thousand one hundred four dollars per year with graduations of five hundred dollars annually thereafter, and they shall receive mileage at the rate of not less than twenty cents the current rate as established by the West Virginia office of travel management for each mile actually traveled in the discharge of their official duties in a privately owned vehicle. Within the limits provided by law, the salary of each inspector shall be fixed by the director, subject to the approval of the mine inspectors' examining board. In fixing salaries of mine inspectors, the director shall consider ability, performance of duty and experience. No reimbursement for traveling expenses shall be made except on an itemized account of such the expenses submitted by the inspector, who shall verify upon oath, that such expenses were actually incurred in the discharge of his or her official duties. Every inspector shall be afforded compensatory time or compensation of at least his or her regular rate for all time in excess of forty-two hours per week.
(d) Any mine inspector who has fulfilled the requirements of this section with respect to employment and who has served satisfactorily as a mine inspector for a minimum period of one year and who has terminated his or her employment as a mine inspector, upon successfully passing a physical examination, may be reinstated as a mine inspector within two years after terminating his or her employment with the approval of the examining board and the director.
(e) A mine inspector, after having received a permanent appointment, shall be removed from office only for physical or mental impairment, incompetency, neglect of duty, drunkenness, malfeasance in office or other good cause.
Proceedings for the removal of a mine inspector may be initiated by the director whenever there is reasonable cause to believe that adequate cause exists, warranting removal. Such A proceeding shall be initiated by a verified petition, filed with the board by the director, setting forth with particularity the facts alleged. Not less than twenty reputable citizens, who are operators or employees in mines in the state, may petition the director for the removal of a mine inspector. If such the petition is verified by at least one of the petitioners, based on actual knowledge of the affiant and alleged facts, which, if true, warrant the removal of the inspector, the director shall cause an investigation of the facts to be made. If, after such the investigation, the director finds that there is substantial evidence, which, if true, warrants removal of the inspector, the director shall file a petition with the board requesting removal of the inspector.
On receipt of a petition by the director seeking removal of a mine inspector, the board shall promptly notify the inspector to appear before it at a time and place designated in said notice, which time shall be not less than fifteen days thereafter. There shall be attached to the copy of the notice served upon the inspector a copy of the petition filed with the board.
At the time and place designated in said the notice, the board shall hear all evidence offered in support of the petition and on behalf of the inspector. Each witness shall be sworn, and a transcript shall be made of all evidence taken and proceedings had at any such hearing. No continuance shall be granted except for good cause shown. The chair of the board and the director have power to administer oaths and subpoena witnesses.
Any mine inspector who willfully refuses or fails to appear before the board, or having appeared, refuses to answer under oath any relevant question on the ground that the testimony or answer might incriminate him or her or refuses to waive immunity from prosecution on account of any relevant matter about which the inspector may be asked to testify at any such hearing before the board, shall forfeit his or her position.
If, after hearing, the board finds that the inspector should be removed, it shall enter an order to that effect. The decision of the board is final and is not subject to judicial review.
§22A-1-13. Eligibility for appointment as surface mine inspector; qualifications; salary and expenses; removal.

In order to qualify for an appointment as a surface mine inspector, under the provisions of this article, an eligible applicant shall have had at least five years' practical experience in surface mines, at least one year of which, immediately preceding his or her original appointment, shall have been in surface mines in this state, and submit to a written and oral examination given by the mine inspectors' examining board. The examination shall relate to the duties to be performed by a surface mine inspector and may, subject to the approval of the mine inspectors' examining board, be prepared by the director.
If the board finds after investigation and examination that the applicant: (1) Is eligible for appointment; and (2) has passed all oral and written examinations with a grade of at least eighty percent, the board shall add such the applicant's name and grade to a register of qualified eligible candidates and certify its action to the director. The director may then appoint one of the candidates from the three having the highest grades.
All such appointees shall be citizens of West Virginia, in good health, not less than twenty-five years of age, of good character and reputation and temperate in habits. No person is eligible for permanent appointment as a surface mine inspector until he or she has served in a probationary status for a period of one year to the satisfaction of the director.
In the performance of duties devolving upon surface mine inspectors, they shall be responsible to the director.
The salary of the surface mine inspector supervisor shall be not less than twenty-four thousand four hundred eighty dollars per year. Salaries of surface mine inspectors shall be not less than twenty-one thousand seven hundred eighty thirty-eight thousand three hundred twelve dollars per year with graduations of five hundred dollars annually thereafter. In the discharge of their official duties in privately-owned vehicles, surface mine inspectors and the surface mine inspector supervisor shall receive mileage at the rate of not less than twenty cents per mile the current rate as established by the West Virginia office of travel management for each mile actually traveled in the discharge of their official duties in a privately-owned vehicle.
A surface mine inspector, after having received a permanent appointment, shall be removed from office only for physical or mental impairment, incompetency, neglect of duty, drunkenness, malfeasance in office, or other good cause.
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; certificate of approval not transferable; section to be printed on certificates of approval; creation of miners' health, safety and training fund; deposits into same; and expenditures from same.

(a) After the first day of July, one thousand nine hundred seventy-one, no No mine shall may be opened or reopened unless prior approval has been obtained from the director of the office of miners' health, safety and training, which approval shall may not be unreasonably withheld. The operator shall must pay for such this approval a fee of one hundred dollars, which payment shall must 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 a permit to open a mine shall must apply for the extension of such that permit for an additional year. Such permit extension, evidenced by a document issued by the director, shall be granted as a matter of right for a fee of one hundred dollars if, at the time such application is made, the permit holder is in compliance with the 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 of this chapter. Applications for extension of such these permits not submitted within the time required shall be processed as an application to open or reopen a mine and shall must be accompanied by a fee of one hundred dollars.
(b) Permits issued pursuant to this section shall not be are not transferable.
(c) If the operator of a mine is not the permit holder as defined in subsection (a) above of this section, then such the 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 the mine on the tenth day of April, one thousand nine hundred ninety-three, must apply for a certificate of approval on or before the first day of July, one thousand nine hundred ninety-three. The operator shall must pay a fee of one hundred dollars, which payment shall must 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 him or her for the certificate of approval under article one of this chapter.
(d) In addition to the director's authority to file a petition for enforcement under subdivision (4), subsection (a), section twenty-one, article one of this chapter, if an operator holding a certificate of approval issued pursuant to subsection (c) of this section, against whom a civil penalty is has been assessed a civil penalty in accordance with section twenty-one, article one of this chapter and implementing regulations rules, and which the penalty has become final, fails and the operator has failed to pay the penalty within the time prescribed in such the order assessing the penalty, the director or the authorized representative of the director, by certified mail, return receipt requested, shall send a notice to such the 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 the operator's certificate of approval: Provided, That such the operator to whom the delinquency notice is issued shall have has thirty days from receipt thereof to request, by certified mail, return receipt requested, a public hearing held in accordance with the procedures of section seventeen, article one of this chapter, and implementing rules, including application for temporary relief. Once such an operator's certificate of approval is revoked pursuant to this subsection, such that operator shall be is 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) Notwithstanding any provision in this chapter or any regulation promulgated hereunder to the contrary, every firm, corporation, partnership or individual referred to in subsection (h) of this section shall have the sole and independent responsibility and duty for ensuring that their operations are conducted at all times in compliance with all the mining laws and regulations of this state and this responsibility may not be deemed to have been assigned, in whole or in part, to any third person by operation of law.
(f) Every firm, corporation, partnership or individual referred to in subsection (h) of this section shall have the sole and independent responsibility and duty for all notices of violations and associated assessments and penalties levied against it for violations of the mining laws and regulations of this state, except in those cases where a third person is found to have willfully contributed to the act or omission which gave rise to the violation, in which case, such third person shall be jointly liable for such notices of violations and associated assessments and penalties.
(g) Nothing contained in this chapter may be construed as limiting or in anyway delegating to any third person the responsibility of the office of miner's health, safety and training, in issuing certificates of approval to every firm, corporation, partnership or individual referred to in subsection (h) of this section, to regulate such of their activities as are covered by the mining laws and regulations which are the responsibility of this state to enforce, so as to ensure their competency and overall qualifications and thereby protect the safety of the workers whom that office is charged with protecting. (h) Every firm, corporation, partnership or individual that contracts to perform services or construction at a coal mine shall be is deemed to be an operator and beginning the first day of January, one thousand nine hundred ninety-five, must apply for and obtain a certificate of approval prior to commencing operations: Provided, That such these persons shall only may be required to obtain only one certificate annually: Provided, however, That persons such as including, but not limited to, consultants, mine vendors, office equipment suppliers, and maintenance and delivery personnel are excluded from this requirement to obtain a certificate of approval. Any such operator shall Operators who are required to obtain a certificate of approval pursuant to this subsection must pay a fee of one hundred dollars which shall must be tendered with the application for approval. Such This approval, evidenced by a certificate issued by the director, shall be granted if, at the time such application is made, the applicant has paid or otherwise appealed all coal mine assessments imposed on such applicant him or her under article one of this chapter.
Within thirty days after the first day of January of each year, the holder of such a certificate of approval shall must apply for the extension of such that approval for an additional year. Applications for extension must be accompanied by a fee of one hundred dollars. An extension shall be granted if, at the time such application is made, the applicant has paid or otherwise appealed all coal mine assessments imposed on such applicant him or her under article one of this chapter. All delinquent assessments which have been imposed upon a certificate of approval holder or applicants under this section shall not be imposed upon any permit holder or certificate of approval holder or any applicant pursuant to subsection (a) or (c) of this section.
(i) The provisions of this section shall be printed on the reverse side of every permit issued under subsection (a) of this section and certificate of approval issued under subsection (d) of this section.
(j) The district mine inspector shall be contacted for conduct a preinspection of the area proposed for underground mining prior to issuance of any new opening permit approval.
(k) After the thirtieth day of June, one thousand nine hundred ninety-seven, all moneys collected by the office of miners' health, safety and training for the approval fees set forth in subsections (a), (c) and (e) of this section shall be deposited with the treasurer of the state of West Virginia in a special account in accordance with the provisions of subsection (f), section twenty-one, article one of this chapter, and entitled, "Health, Safety and Training Fund". Expenditures from the fund herein created may be made only pursuant to appropriation by the Legislature.
(l) Prior to the issuance or extension of any permit referred to in subsection (a) of this section, or any certificate of approval or extension thereof under subsections (c) and (h) of this section, the director shall ascertain from the commissioner of the bureau of employment programs whether the applicant is in default of the provisions of section five, article two, chapter twenty- three of this code with regard to any required subscription to the worker's compensation fund, the payment of premiums to the fund, the timely filing of payroll reports and the maintenance of an adequate premium deposit. If the applicant has defaulted, or has been terminated, then the permit, certificate or extension shall not be issued until the applicant returns to compliance or is restored by the workers' compensation division under a reinstatement agreement: Provided, That in all such inquires the commissioner of the bureau of employment programs shall make response to the director within fifteen calendar days; otherwise, failure to respond timely shall be considered to indicate the applicant is in compliance and such failure will not be used to preclude issuance of the permit, certificate or extension. For purposes of this subsection, "applicant" shall be limited to the employing unit whose account or risk number assigned by the worker's compensation division appears on the default list maintained by the commissioner of the bureau of employment programs.
ARTICLE 7. BOARD OF MINER TRAINING, EDUCATION AND CERTIFICATION.

§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 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.
The director shall ensure that all mine safety instructors employed currently or in the future at the West Virginia office of miners' health, safety and training shall obtain and retain approved instructor status in accordance with provisions of the federal act to conduct all components of the annual refresher training programs as established by the board.
Thereafter, in the implementation of the programs instituted purusant to the provisions of this article, the director shall make available such annual refresher training at no cost to all workers at small mines, quarries, preparation plants and load-out facilities including all employees performing services or construction at such small mines, quarries, preparation plants and load-out facilities by utilizing the mine safety instructors employed at the West Virginia office of miners' health, safety and training to conduct such annual refresher training as established by the board.