COMMITTEE SUBSTITUTE

FOR

H. B. 4288

(By Delegates Martin, Varner, Kuhn,

Warner, Collins and Walters)


(Originating in the Committee on Finance)

[March 2, 1998]



A BILL to amend and reenact section two, article one, chapter twenty-two-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend section sixty- three, article two of said chapter, all relating to the office of miners health, safety and training; fees for certificate of approval and permits; 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; civil penalties assessed on operators of coal mines for health and safety rules; abolishing the special health, safety and training fund; providing that all civil penalties collected be deposited with the state treasurer; and removing the spending authority of the director of the West Virginia office of miners health, safety and training for these funds.

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

§22A-1-2. Penalties.

(a) (1) Any operator of a coal mine in which a violation occurs of any health or safety rule or who violates any other provisions of this law shall be assessed a civil penalty by the director under subdivision (3) of this subsection, which penalty shall be not more than three thousand dollars, for each such violation. Each such violation shall constitute a separate offense. In determining the amount of the penalty, the 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 promulgated pursuant to this chapter is subject to a civil penalty assessed by 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 director only after the person charged with a violation under this chapter or rule promulgated pursuant to this chapter has been given an opportunity for a public hearing and the director has determined, by a decision incorporating the director's findings of fact therein, that a violation did occur, 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) If the person against whom a civil penalty is assessed fails to pay the penalty within the time prescribed in such order, the director 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 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 director or it may remand the proceedings to the 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 twenty 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 director may appear for and represent the director in any action to enforce an order assessing civil penalties under this subdivision.
(b) Any operator who knowingly violates a health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter, or knowingly violates or fails or refuses to comply with any order issued under section fifteen of this article, or any order incorporated in a final decision issued under this article, except an order incorporated in a decision under subsection (a) of this section or subsection (b), section twenty-two of this article, shall be assessed a civil penalty by the 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 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-two of this article, any director, officer or agent of such corporation who knowingly authorized, ordered or carried out such violation, failure or refusal, is 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, is 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 certifications held by the person under this chapter which certified or authorized the person to direct other persons in coal mining by operation of law and bars the person 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 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 rule of the director applicable to such equipment, and which does not so comply, is 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 twenty-one of this article shall be collected by the director and deposited with the state treasurer of the state of West Virginia to the credit of the special health, safety and training fund the general fund. The fund shall be used by the director who is authorized to expend the moneys in the fund for the administration of this chapter.
 ARTICLE. UNDERGROUD 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; certificates of approval not transferable; section to be printed on certificates of approval.

(a) After the first day of July, one thousand nine hundred seventy-one, 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 pay for such the approval a fee of one hundred dollars, which payment shall 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 apply for the extension of such permit for an additional year. Such The permit, 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 permits not submitted within the time required shall be processed as an application to open or reopen a mine and shall 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 pay a fee of one hundred dollars, which payment shall be tendered with the application for approval. Such The 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 the applicant 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 to pay the penalty within the time prescribed in such the order, 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 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 the operator's certificate of approval is revoked pursuant to this subsection, such the 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) 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 be required to obtain one certificate annually: Provided, however, That persons such as, 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 Operators who are required to obtain a certificate of approval pursuant to the provisions of this subsection shall pay a fee of one hundred dollars which shall be tendered with the application for approval. Such approval Approval evidenced by a certificate issued by the director, shall be granted if, at the time such the application is made, the applicant has paid or otherwise appealed all coal mine assessments imposed on such the applicant under article one of this chapter.
Within thirty days after the first day of January of each year, the holder of such certificate of approval shall 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 the applicant 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 may not be imposed upon any permit holder or certificate of approval holder or any applicant pursuant to subsection (a) or (c) of section sixty-three.
(f) The provisions of this section shall be printed on the reverse side of every permit issued under subsection (a) and certificate of approval issued under subsection (d) herein.
(g) The district mine inspector shall be contacted for conduct a pre-inspection of the area proposed for underground mining prior to issuance of any new opening permit approval.
(h) After the first day of July, 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), (b) and (e) of this section shall be deposited with the treasurer of the state of West Virginia to the credit of the general administration--operating permit fees fund. The operating permit fees fund shall be used by the director who is authorized to expend the moneys in the fund for the administration of this chapter: Provided, That after the thirtieth day of June, one thousand nine hundred ninety-eight, all moneys collected by the office of miners' health, safety and training for the approval fees set forth in subsections (a), (b) and (e) of this section shall be deposited with the state treasurer to the credit of the general fund.