H. B. 4758

(By Delegate Frederick)
[Introduced February 25, 2000; referred to the
Committee on the Judiciary.]

A BILL to amend and reenact sections one hundred one, three hundred eight and three hundred nine, article two-a, chapter twenty-two-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the establishment of standards and procedures for the use and maintenance of diesel-powered equipment in underground coal mines; extending the time for the commission to promulgate rules and eliminating the arbitration process.

Be it enacted by the Legislature of West Virginia:
That sections one hundred one, three hundred eight and three hundred nine, article two-a,

chapter twenty-two-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:

ARTICLE 2A. USE OF DIESEL-POWERED EQUIPMENT IN UNDERGROUND COAL MINES.

Part I. General Provisions.
§22A-2A-101. Use of diesel-powered equipment authorized.
Diesel-powered equipment for use in underground coal mines may only be approved, operated, and maintained in accordance with rules, requirements and standards established pursuant to this article. Diesel-powered equipment shall may not be used in underground coal mines until the West Virginia diesel equipment commission promulgates its initial rules, requirements and standards governing the operation of diesel equipment in underground coal mines, or establishes appropriate controls and conditions on a site-specific basis in accordance with section three hundred nine and subsection (b), section three hundred ten of this article for using such equipment.
§22A-2A-308. Promulgation of initial rules by the commission.
(a) The West Virginia diesel equipment commission shall prepare and adopt the initial rules for the operation of diesel equipment in underground coal mines in this state. In preparing and adopting initial rules, the commission shall consider the highest achievable measures of protection for miners' health and safety through available technology, engineering controls and performance requirements, and shall further consider the cost, availability, adaptability and suitability of any available technology, engineering controls and performance requirements as they relate to the use of diesel equipment in underground coal mines. Authorization for the commission to establish the initial rules shall cease to exist after the thirty-first day of March, one thousand nine hundred ninety-eight, except that the commission shall, if necessary, promulgate initial rules following a decision made by the board of arbitrators pursuant to section three hundred nine of this article.

(b) In promulgating the initial rules pursuant to subsection (a) of this section, the commission shall follow the procedures set forth in article three, chapter twenty-nine-a of this code that are prescribed for an agency proposing a legislative rule, to the point where an agency would approve a rule for submission to the Legislature. At that point, the commission shall proceed to final adoption of the initial rules and file a notice of the final adoption in the state register and with the legislative rule-making review committee. Upon final adoption by the commission, the initial rules are thereby promulgated and have the effect of law without further action by the commission or the Legislature. The initial rules shall be published in the code of state rules and continue in effect until modified or superseded in accordance with the provisions of this article.

§22A-2A-309. Commission may consider and approve petition prior to promulgating rules.

(a) If the commission fails to finally adopt its initial rules before the first day of April, one thousand nine hundred ninety-eight, the members who represent the viewpoint or interests of coal operators and the members who represent the viewpoint or interests of working miners shall each prepare a final draft of proposed initial rules, which drafts shall be considered the "last best offer" by each group of members. Thereafter, the matters in controversy which the commission is unable to resolve shall be submitted to arbitration as soon as is practicable.
(b) The board of appeals established and continued pursuant to the provisions of article five of this chapter shall begin the selection of arbitrators by contacting the alternative dispute resolution department of the federal mediation and conciliation service to obtain a roster of the names of fifteen persons who are willing to serve as neutral members of a special subcommittee of the board of appeals that will function as a board of arbitration. The board of appeals shall request that the federal mediation and conciliation service, in compiling the roster, consider experience, training, affiliations, actual or potential conflicts of interest and other matters when selecting persons who may serve as neutral and independent arbitrators. From the roster of fifteen persons so compiled, the board of appeals shall draw five names by lot. The persons drawn shall comprise the board of arbitration, and they are empowered to resolve all outstanding issues that prevent final adoption of initial rules by the diesel equipment commission.
(c) In the event that an arbitrator shall die, or refuse to act or become incapable of acting as an arbitrator before the matters pending before the board of arbitration are concluded, then the remaining arbitrators shall appoint another person from the roster of available persons to be an arbitrator in place of the arbitrator who no longer continues to act.
(d) Each arbitrator shall be compensated at a per diem rate of two hundred twenty-five dollars per day for each day or portion thereof engaged in the discharge of official duties. Each member of the commission shall be paid the same expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law. No reimbursement for expenses shall be made except upon an itemized account, properly certified by the arbitrators. All reimbursement for expenses shall be paid out of the state treasury upon a requisition on the state auditor.
(e) On the fifth day of January, one thousand nine hundred ninety-nine, the board of arbitrators shall resolve issues presented by the proposed drafts drawn up by the members of the commission. Only matters in controversy may be addressed by the board of arbitration. Arbitration is conditioned by limiting the range of outcomes to a choice between the positions submitted by each opposing group within the commission as their "last best offer." As to each issue raised by the proposed drafts, the board of arbitration shall adopt a position advanced by one of the member groups and shall have no authority to compromise the positions or substitute an alternative position. In making its decisions, the board of arbitrators shall consider the highest achievable measures of protection for miners' health and safety through available technology, engineering controls and performance requirements, and shall further consider the cost, availability, adaptability and suitability of any available technology, engineering controls and performance requirements as they relate to the use of diesel equipment in underground coal mines. When the board of arbitration reaches agreement on a proposed rule, at the conclusion of its work the board of arbitration shall transmit a report containing the proposed rule to the commission, the president of the Senate and the speaker of the House of Delegates. The board of arbitration may include in its report any other information, recommendations, or materials that the board of arbitration considers appropriate, including suggested legislation. Any arbitrator may include as an addendum to the report any additional information, recommendations, or materials.
(f) The board of coal mine health and safety shall provide appropriate administrative support to the board of arbitration, including technical assistance.

(g) Within twenty-eight days following the resolution of all issues by the board of arbitration, the commission shall adopt the initial rules, fully incorporating the decision of the board of arbitration. The commission shall file a notice of the final adoption in the state register and with the legislative rule- making review committee. The initial rules are thereby promulgated and have the effect of law without further action by the commission or the Legislature. The initial rules shall be published in the code of state rules and continue in effect until modified or superseded in accordance with the provisions of this article, or by act of the Legislature.
The commission may consider and approve any petition from a coal mine operator or miners to use diesel powered equipment in accordance with subsection (b), section three hundred ten, prior to such time that the commission promulgates initial rules.

NOTE: The purpose of this bill is to extend the period of time for the WV Diesel Commission to promulgate rules governing the use of diesel powered equipment in underground mines and to authorize the commission to consider and approve the use of such equipment upon petitioned by an operator or miners.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.