H. B. 2078
(By Delegate Manuel
)
[Introduced February 13, 1997; referred to the
Committee on Industry and Labor then the Judiciary.]
A BILL to amend and reenact section seven, article three-a,
chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
proposal of rules by the labor commissioner requiring the
use of certain safety devices for cranes that reduce the
chances of injury caused by contact with overhead power
lines.
Be it enacted by the Legislature of West Virginia:
That section seven, article three-a, chapter twenty-one of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.
§21-3A-7. Adoption of federal and state standards; variances.
(a) The commissioner, on or before the first day of July, one thousand nine hundred eighty-seven, shall provide at the minimum, for the adoption of all occupational safety and health
standards, amendments or changes adopted or recognized by the
United States secretary of labor under the authority of the
Occupational Safety and Health Act of 1970, which are in effect
on the effective date of this section. Where no federal
standards are applicable, or where standards more stringent than
the federal standards are deemed advisable, the commissioner
shall provide for the development of such state standards as will
comport with the purposes of this act. Standards shall be
adopted through state administrative procedures.
(b) In the event of emergency or unusual situations, the
commissioner shall provide for an emergency temporary standard to
take effect immediately if he or she determines:
(1) Employees are exposed to grave danger from exposure to
substances or agents determined to be toxic or physically harmful
or from new hazards; and
(2) The emergency standard is necessary to protect employees
from such danger.
The emergency standard may be in effect not longer than one
hundred eighty days or, if renewed in compliance with the laws of
this state governing the adoption or extension of rules, not
longer than sixty additional days. On or before the expiration
date of the emergency standard or renewal thereof, the
commissioner shall develop a permanent standard to replace the emergency standard.
(c) Any standard promulgated proposed shall prescribe the
use of labels or other appropriate forms of warning necessary to
ensure that employees are apprised of all hazards to which they
are exposed, relevant symptoms and appropriate emergency
treatment and, where appropriate, proper conditions and
precautions of safe use or exposure. The standard shall also
prescribe suitable protective equipment and control procedures
for use in connection with such those hazards and shall provide
for measuring employee exposure in the manner necessary for the
protection of employees. In addition, where appropriate, the
standard shall prescribe the type and frequency of medical
examinations or other tests which shall be made available to
employees exposed to such hazards in order to determine any
adverse effect from that exposure.
(d) Any employer may apply to the commissioner for a
temporary order granting a variance from a standard, or any
provision thereof, promulgated proposed under this section. A
temporary order shall be granted if the employer files an
application which meets the requirements of subsection (e) of
this section and establishes that:
(1) He or she is unable to comply with a standard by its
effective date because of unavailability of professional or
technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary
construction or alteration of facilities cannot be completed by
the effective date;
(2) He or she is taking all available steps to safeguard
employees against the hazards covered by the standard; and
(3) He or she has an effective program for coming into
compliance with the standard as quickly as practicable.
Any temporary order issued under this subsection shall
prescribe the practices, means, methods, operations and processes
which the employer must adopt and use while the order is in
effect and state in detail his or her program for coming into
compliance with the standard. A temporary order may be granted
only after notice by the commissioner to employees and an
opportunity for a hearing before the commissioner: Provided,
That the commissioner may issue one interim order to be effective
until a decision is made on the basis of the hearing. No
temporary order may be in effect for longer than the period
needed by the employer to achieve compliance with the standard or
one year, whichever is shorter: Provided, however, That an order
may be renewed if the requirements of this subsection are met and
if an application for renewal is filed at least ninety days prior
to the expiration date of the order. No interim renewal of an
order may remain in effect longer than one hundred eighty days.
(e) An application for a temporary variance order shall contain:
(1) A specification of the standard or portion thereof from
which the employer seeks a variance;
(2) A representation by the employer, supported by
representations from qualified persons who have firsthand
knowledge of the facts represented, that he or she is unable to
comply with the standard or portion thereof and a detailed
statement of the reasons therefor;
(3) A statement of the steps he or she has taken and will
take, with specific dates, to protect employees against the
hazard covered by the standards;
(4) A statement of when he or she expects to comply with the
standard and what steps he or she has taken and what steps he or
she will take, with dates specified, to come into compliance with
the standard; and
(5) A certification that he or she has informed his or her
employees of the application by giving a copy thereof to their
authorized representative, posting a statement giving a summary
of the application and specifying where a copy may be examined at
the place or places where notices to employees are normally
posted and by other appropriate means. A description of how
employees have been informed shall be contained in the
certification. The information to employees shall inform them of
their right to petition the commissioner for a hearing. The commissioner is authorized to grant a variance from any standard
or portion thereof whenever he or she determines that a variance
is necessary to permit an employer to participate in an
experiment, approved by the commissioner, designed to demonstrate
or validate new and improved techniques to safeguard the health
or safety of workers.
(f) Any affected employer may apply to the commissioner for
an order granting a variance from a standard promulgated proposed
under this section. Affected employees shall be given notice of
each such application and an opportunity to participate in a
hearing before the commissioner.
The commissioner shall issue such order if he or she
determines on the record, after opportunity for an inspection
where appropriate and a hearing, that the proponent of the
variance has demonstrated by a preponderance of the evidence that
the conditions, practices, means, methods, operations or
processes used or proposed to be used by an employer will provide
employment and places of employment which are as safe and
healthful as those which would prevail if he or she complied with
the standard. The order issued shall prescribe the conditions
the employer must maintain and the practices, means, methods,
operations and processes which he or she must adopt and utilize
to the extent they differ from the standard in question. The
order may be modified or revoked upon application by an employer or employees, or by the commissioner on his or her own motion, in
the manner prescribed for its issuance under this subsection at
any time after six months from its issuance.
(g) Any employee who may be adversely affected by a standard
or variance or regulation issued under this section may challenge
the validity or applicability of a standard or variance or
regulation by bringing an action for a declaratory judgment.
(h) It is the expressed intent of the Legislature that an
unlimited number of variances may be granted, if the conditions
of this section are met.
(i) The commissioner shall propose rules requiring that all
cranes shall be equipped with certain safety devices to reduce
the injuries that result from contact with overhead power lines.
The required equipment shall include, but not be limited to, the
following: (1) A proximity warning system that will warn the
crane operator when the boom of the crane is near a power line;
(2) an insulated boom guard on the top and bottom of the boom
that will prevent the boom of a crane from coming into contact
with a power line; and (3) an insulated link between the crane
hook and the load being lifted by the crane that will prevent
electricity from being conducted through the load and down the
boom to the crane.
NOTE: The purpose of this bill is to require the labor
commissioner to propose rules requiring that all cranes be
equipped with certain safety devices that reduce the chances of
injuries caused by overhead power lines.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.