Senate Bill No. 179

(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
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[Introduced January 11, 2002; referred to the Committee

on Energy, Industry and Mining; and then to the Committee on Finance.]

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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 and safety; promulgation of procedures to assess civil penalties; and assessment of special penalties.

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:
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING. 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, whether the operator was negligent, 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. Not later than the first day of June, two thousand two, the director shall promulgate as a rule the procedure for assessing such civil penalties. This rule will be in effect upon filing, without regard to the provisions of chapter twenty-nine-a of the code of West Virginia.
(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 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 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.
(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, Any operator who violates a health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter or health and safety rule promulgated pursuant to this chapter and the violation is of such a nature or seriousness that it is not possible to determine an appropriate penalty under the provision of subsection (a), section twenty-two of this article, a special assessment will be considered. Accordingly, the following categories will be individually reviewed to determine whether a special assessment is appropriate:
(1) Violations involving fatalities and serious injuries;
(2) Failure or refuses to comply with any order issued under section fifteen of this article;
(3) Operation of a mine in the face of a closure order;
(4) Violations involving an imminent danger;
(5) Violations involving an extraordinarily high degree of negligence or gravity or other unique aggravating circumstances;
(6) Discrimination violation under section twenty-two of this chapter.
For a special assessment the director shall assess a civil penalty of at least five thousand dollars and 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 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.
(f) 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.



NOTE: The purpose of this bill is to provide for a new procedure for assessing civil penalties and to allow for special assessments of civil penalties under certain circumstances. Also to give authority to MHST to spend the moneys collected from civil penalties.

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