Senate Bill No. 440
(By Senators Anderson, Kessler, Fanning and Ross)
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[Introduced February 10, 2000; referred to the Committee on
Energy, Industry and Mining.]
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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
miners' health, safety and training; penalties; and providing
that miners fined under the provisions of said article are
given the option of either paying the assessment within the
time prescribed in the order or completing a comprehensive
training class dealing specifically with the adverse health
and safety consequences resulting from the person's failure or
refusal to comply with the cited statute or rule.
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 chapter shall be assessed a civil penalty by the
director under subdivision (3) of this subsection, which shall be
not more than three thousand dollars, for each violation. Each
violation constitutes a separate offense. In determining the
amount of the penalty, the director shall consider the operator's
history of previous violations, the appropriateness of the 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. Any revisions to rules relating to
the assessment of civil penalties shall be proposed for
promulgation as legislative rules in accordance with the provisions
of article three, 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 may not be more than two hundred fifty dollars for each
occurrence of the 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 in the
decision, that a violation did occur, and the amount of the penalty
which is warranted, and incorporating, when appropriate, an order
in the decision 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 the order,
the director may file a petition for enforcement of the 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 immediately 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. The director shall certify and file
in the court the record upon which such the order sought to be
enforced was issued. The court has 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 any
further action 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, those 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.
Any miner assessed a civil penalty for violating any health or
safety provision of this code or health or safety rule promulgated
pursuant to this code shall be given the option of either paying
the assessment within the time prescribed in the order or of
completing a comprehensive training class dealing specifically with
the adverse health and safety consequences resulting from the
person's failure or refusal to comply with the cited statute or
rule. The extent of the training class shall correspond to the
gravity of the violation, as well as any history of previous
violations, but in no case may the duration of the training class exceed eight hours for each cited occurrence and in no case may the
mine operator be required to compensate the cited individual for
the time required to complete the training class.
(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 the corporation who knowingly authorized, ordered or carried out the 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 or regional 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
that 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 a 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
the equipment, who willfully misrepresents the equipment as
complying with the provisions of this law, or with any specification or rule of the director applicable to the equipment,
and which does not comply with the law, specification or rule, is
guilty of a misdemeanor and, upon conviction thereof, is subject to
the same fine and imprisonment that may be imposed upon a person
under subsection (d) of this section.
(f) (1) There is created in 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.
(2) After the thirtieth day of June, one thousand nine hundred
ninety-eight, the special health, safety and training fund is
abolished and any balances remaining in the fund shall be deposited
into the state general revenue fund. On and after the first day of
July, one thousand nine hundred ninety-eight, all civil penalty
assessments collected under section twenty-one of this article
shall be collected by the director and paid to the state treasurer
for deposit into the state general revenue fund.
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(NOTE: The purpose of this bill is to discourage nonpayment
of individual personal assessments levied for noncompliance with current mining statutes and rules by permitting assessed
individuals the opportunity to either pay the penalty within the
prescribed time or to complete a training class in lieu thereof.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new
language that would be added.)
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ENERGY, INDUSTRY AND MINING COMMITTEE AMENDMENT
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 440 -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 miners' health, safety and training; violations of
health and safety rules; civil penalties; and providing an option
to violators to complete a comprehensive training class in lieu of
paying the civil penalty assessment.