H. B. 4289
(By Delegates Martin, Varner, Kuhn,
Warner, Collins and Walters)
[Introduced February 6, 1998; referred to the
Committee on Finance.]
A BILL to amend and reenact section twenty-one, article one,
chapter twenty-two-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
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 twenty-one, article one, chapter twenty-two-a
of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted to read as follows:
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING;
ADMINISTRATION; ENFORCEMENT.
§22A-1-21. 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 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 director who is authorized to expend the moneys in
the fund for the administration of this chapter
NOTE: The purpose of this bill is to abolish the special
health, safety and training fund in the Treasurer's office;
provide that all civil penalties collected for civil penalties
assessed on operators of coal mines for health and safety rules
be deposited with the state treasurer; and to remove the spending
authority of the Director for the West Virginia Office of Miners
Health, Safety and Training for these funds.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.