WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
EIGHTIETH LEGISLATURE
REGULAR SESSION, 2012
FIFTY-FIFTH DAY
____________
Charleston, W. Va., Monday, March 5, 2012
The Senate met at 11 a.m.
(Senator Kessler, Mr. President, in the Chair.)
Prayer was offered by Pastor Rafe Allison, St. Timothy Lutheran Church, Charleston, West Virginia.
Pending the reading of the Journal of Friday, March 2, 2012,
On motion of Senator K. Facemyer, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body to the title of the bill, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 100, Relating to fees collected by circuit court clerks.
On motion of Senator Unger, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the title of the bill was reported by the Clerk:
Eng. Com. Sub. for Senate Bill No. 100--A Bill to amend and reenact §59-1-11 of the Code of West Virginia, 1931, as amended, relating to collecting fees by circuit clerks; removing the requirement that the circuit clerk charge three times the amount of actual postage when sending certain documents by mail or express; and allowing for the collection of a fee equal to the actual amount of the postage and express costs for sending decrees, orders or records that have not been ordered to be sent by mail or express.
On motion of Senator Unger, the Senate concurred in the House of Delegates amendment to the title of the bill.
Engrossed Committee Substitute for Senate Bill No. 100, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.
The nays were: None.
Absent: Edgell and Helmick--2.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 100) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 205, Relating to construction zone signage.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 385, Expanding definition of "computer" in commission of certain crimes.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 429, Relating to motor vehicle classifications.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
Eng. Com. Sub. for Senate Bill No. 434, Providing suggestion and suggestee execution contain certain information.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, with its Senate amended title, of
Eng. Com. Sub. for House Bill No. 4122, Relating to alternative programs for teacher education.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 49--Requesting the Division of Highways to name the bridge on the West Virginia Turnpike at mile marker 89.5 at the Marmet Interchange over Route 94, number 20-77-89.50, in Kanawha County, the “LTC Spencer J. Campbell Memorial Bridge”.
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 75--Requesting the Division of Highways to name a five mile section of State Route 10, also known as McCellan Highway, from the Logan-Lincoln County line to the Harts Veterans Memorial Bridge in Harts, West Virginia, the “McCellan Highway and Jerry Lee Richards Memorial Highway”.
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 96--Requesting the Division of Highways to name a stretch of highway on West Virginia Route 62 running between Mason and to the end of New Haven, in Mason County, West Virginia, The “Fields Brothers Memorial Highway”.
Referred to the Committee on Transportation and Infrastructure.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 101--Requesting that bridge number 17-20-1.14 on Route 20 in Harrison County, West Virginia, be named the “John Charles Giese Memorial Bridge”.
Referred to the Committee on Transportation and Infrastructure.
The Senate proceeded to the fourth order of business.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3142, Increasing the allowable number of magistrate court deputy clerks by five.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Corey Palumbo,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance, with an amendment from the Committee on the Judiciary pending.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4130, Creating the felony criminal offense of sale or purchase of a child.
And,
Eng. Com. Sub. for House Bill No. 4307, Clarifying that the practice and procedure for domestic violence civil proceedings are governed by court rule.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4247, Increasing the compensation of attorneys who are appointed to represent criminal defendants.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Corey Palumbo,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. Com. Sub. for House Bill No. 4338, Raising the maximum value amount of an abandoned motor vehicle.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Robert D. Beach,
Chair.
At the request of Senator Beach, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4338) contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4376, Licensing wine sales at certain professional baseball stadiums.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
House Concurrent Resolution No. 79, The "Jack D. Miller Memorial Bridge".
And,
House Concurrent Resolution No. 84, The "First Lieutenant Charles (Chuck) Barrett II Memorial Bridge".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
The Senate proceeded to the sixth order of business.
Senators Plymale, Foster, Jenkins, Edgell, Unger, Prezioso, Stollings and Kessler (Mr. President) offered the following resolution:
Senate Concurrent Resolution No. 63--Encouraging the Governor to unite with the Legislature in support for the Federal Pell Grant and to discourage Congress from making cuts to the Pell Grant program.
Whereas, A 2010 Lumina Foundation for Education report found that West Virginia has the fewest college graduates among residents between the ages of 25 and 64, with only 11.7 percent of the working population holding a bachelor’s degree, 7 percent holding a graduate or professional degree and 6.8 percent holding an associate’s degree; and
Whereas, The 2008 Educational Needs Index reported that a majority of West Virginia’s twelve regions demonstrate critical educational needs, ranking the state among the highest in the nation in terms of educational needs; and
Whereas, The West Virginia Higher Education Policy Commission has found that West Virginia will need to produce over 40,000 additional Associate and Bachelor’s degree holders by 2025 to reach the national average educational attainment of 55 percent in the 25-65 age group having an associate’s degree or higher; and
Whereas, The average costs of college tuition and fees in the United States have increased by 538 percent since 1980, outpacing inflation by over 400 percent over the same time span; and
Whereas, Congressional plans to make reductions in Federal Pell Grant payments to students would affect 9 million students in the country and 61,000 students in the West Virginia, thus adversely affecting 40 percent of all West Virginia college students; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby encourages the Governor to unite with the Legislature in support for the Federal Pell Grant and to discourage Congress from making cuts to the Pell Grant program; and, be it
Further Resolved, That the Governor and the West Virginia Legislature stand in strong support of the Federal Pell Grant program, which aids a substantial portion of college-bound students in this state in meeting the high, rising cost of obtaining a college degree; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Governor and United States Congress.
Which, under the rules, lies over one day.
Senator K. Facemyer offered the following resolution:
Senate Concurrent Resolution No. 64--Requesting the Joint Committee on Government and Finance to study the qualifications, salaries, benefits and responsibilities of the West Virginia Natural Resources Police compared to those of other West Virginia state and local law-enforcement agencies.
Whereas, The West Virginia Natural Resources Police are believed to have the highest requirements for employment in West Virginia law enforcement; and
Whereas, The salaries of West Virginia Natural Resources Police lag behind that of other law-enforcement agencies in the state, and they are not eligible for overtime unlike other law-enforcement agencies; and
Whereas, The West Virginia Natural Resources Police have retirement and disability plans that do not appear to be equal to that of other state law-enforcement agencies and unlike other police agencies their retirement is subject to state income taxes; and
Whereas, The growing differences in salary and benefits, coupled with the higher employment standards are creating recruitment obstacles and endangers the state's ability to maintain a well staffed and well trained contingency of Natural Resources Police Officers; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the qualifications, salaries, benefits and responsibilities of the West Virginia Natural Resources Police compared to those of other West Virginia state and local law-enforcement agencies; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2013, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2521, Eliminating the requirement of serving domestic violence orders by certified mail.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3128, Relating to filing a civil petition for expungement of records relating to an arrest.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3177, Permitting an owner who sells real property pursuant to a deed of trust to terminate a preexisting tenancy.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. VENDOR'S AND TRUST DEED LIENS.
§38-1-16. Sale of real property pursuant to a deed of trust; preexisting tenancy.
(a) Notwithstanding the notice requirements of section five, article six, chapter thirty-seven of this code, following the conveyance of residential rental property to a purchaser by a trustee pursuant to a deed of trust, the tenancy of a tenant occupying the property under an unexpired written lease that is either not of record or was placed of record after the deed of trust under which the trustee sold the residential rental property was placed of record, may be terminated by giving ninety days written notice or by giving written notice not less than thirty days prior to the expiration of the lease, whichever is shorter. However, the tenancy of a tenant occupying the property under a month to month or other tenancy may be terminated by giving thirty days written notice. The terms and conditions of the lease of the property remain fully enforceable during the notice period. If the tenant fails to timely comply with the terms of the lease, the new owner, or the agent of the new owner, may proceed under article three-a of chapter fifty-five of this code, notwithstanding the provisions of this section. The tenancy of a factory built home may only be terminated as provided in section six, article fifteen, chapter thirty-seven of this code.
(b) The notice required by subsection (a) of this section shall, at a minimum, identify the residential real property occupied by the tenant, state the date of the trustee’s sale at which the residential real property was purchased, state the book and page number at which the trustee’s deed to the purchaser appears of record, state the date on which the tenancy will expire, and identify the purchaser, including information sufficient to contact the purchaser.
(c) Service of written notice upon the tenant, or anyone else holding the leased premises, or any part thereof, under the tenant is sufficient if made by regular mail addressed to the tenant or person holding under the tenant at the address of the property and by either personal delivery to the tenant or person holding under the tenant, by posting a copy of the notice on the front door of the rental real property or by certified mail addressed to the tenant or person holding under the tenant at the address of the property. When notice is given by the tenant, it may be served upon any person owning the premises, in whole or in part, or the agent of an owner.
(d) The provisions of this section take effect on the first day of January, two thousand thirteen.
The bill (Eng. Com. Sub. for H. B. No. 3177), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4001, Authorizing boards to establish fees by legislative rule.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4002, Relating to annual seminar requirements for professional licensing boards.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4097, Creating a license to practice hair styling.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4119, Providing a definition for an athletic director who is employed by a county board of education.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18-1-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §18A-2-1a, all to read as follows:
CHAPTER 18. EDUCATION.
ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR EDUCATION.
§18-1-1. Definitions.
The following words used in this chapter and in any proceedings pursuant thereto have the meanings ascribed to them unless the context clearly indicates a different meaning:
(a) “School” means the students and teachers assembled in one or more buildings, organized as a unit;
(b) “District” means county school district;
(c) “State board” means the West Virginia Board of Education;
(d) “County board” or “board” means a county board of education;
(e) “State superintendent” means the state superintendent of free Schools;
(f) “County superintendent” or “superintendent” means a county superintendent of schools;
(g) “Teacher” means a teacher, supervisor, principal, superintendent, public school librarian or any other person regularly employed for instructional purposes in a public school in this state;
(h) “Service person” or “service personnel”, whether singular or plural, means any nonteaching school employee who is not included in the meaning of “teacher” as defined in this section, and who serves the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and aides. Any reference to “service employee” or “service employees” in this chapter or chapter eighteen-a of this code means service person or service personnel as defined in this section;
(i) “Social worker” means a nonteaching school employee who, at a minimum, possesses an undergraduate degree in social work from an accredited institution of higher learning and who provides various professional social work services, activities or methods as defined by the state board for the benefit of students;
(j) “Regular full-time employee” means any person employed by a county board who has a regular position or job throughout his or her employment term, without regard to hours or method of pay;
(k) “Career clusters” means broad groupings of related occupations;
(l) “Work-based learning” means a structured activity that correlates with and is mutually supportive of the school-based learning of the student and includes specific objectives to be learned by the student as a result of the activity;
(m) “School-age juvenile” means any individual who is entitled to attend or who, if not placed in a residential facility, would be entitled to attend public schools in accordance with: (1) Section five, article two of this chapter; (2) sections fifteen and eighteen, article five of this chapter; or (3) section one, article twenty of this chapter;
(n) “Student with a disability” means an exceptional child, other than gifted, pursuant to section one, article twenty of this chapter;
(o) “Casual deficit” means a deficit of not more than three percent of the approved levy estimate or a deficit that is nonrecurring from year to year; and
(p) “Athletic director” means a person employed by a county board to work in a school’s athletic program pursuant to section one-a, article two, chapter eighteen-a of this code.
CHAPTER 18A. SCHOOL PERSONNEL.
§18A-2-1a. Employment of other personnel.
A county board is authorized to employ athletic directors to work in the public schools under the supervision of a school principal and in accordance with the rules of the county board.
(a) The athletic director is responsible for planning, management, operation and evaluation of the athletic program for the school or schools to which he or she is assigned.
(b) The responsibilities of an athletic director may include, but are not limited to, the following:
(1) Supervising athletic games;
(2) Overseeing the athletic budget;
(3) Hiring game officials;
(4) Scheduling athletic contests;
(5) Knowing and upholding all county, West Virginia Secondary Schools Activities Commission (WVSSAC) and league rules;
(6) Maintaining proper records as required by West Virginia Secondary Schools Activities Commission (WVSSAC) for school participation;
(7) Scheduling transportation for athletic teams;
(8) Preparing and verifying athletic eligibility lists;
(9) Supervising coaches and, if appropriately certified, observing and evaluating coaches;
(10) Securing all needed personnel for basic athletic event operations;
(11) Procuring and caring for athletic equipment; and
(12) Performing other duties involving athletics as assigned by the principal or as a part of a county job description for athletic directors.
The bill (Eng. H. B. No. 4119), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4125, Correcting date for schools to send notice to parents alerting them to the existence of the school's crisis response plan.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4126, Authorizing legislative rules for the Higher Education Policy Commission and Council for Community and Technical College Education.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4220, Authorizing the department of commerce to promulgate legislative rules.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page fourteen, section four, line nine, after the word “authorized” by striking out the period and adding the following: with the following amendments:
On page two, subsection 3.5., by striking out all of subsection 3.5. and inserting in lieu thereof a new subsection, designated subsection 3.5., to read as follows:
3.5. “Serious injury,” means an injury that is directly related to any mechanical, electrical, operational or structural malfunction of a zipline or canopy tour that results in death, loss of consciousness, or requires medical treatment other than first aid by a physician or other medical professional for which a record is created.;
And,
On pages four through six, by striking out the remainder of the rule and inserting in lieu thereof the following:
§42-10-10. Unscheduled Cessation of Operation.
10.1. Following any unscheduled cessation of operation, the operator of a zipline or canopy tour shall immediately have the participants safely removed or unloaded from the zipline or canopy tour.
10.2. If the operator determines that the zipline or canopy tour can safely resume operation, the qualified person shall first operate the zipline or canopy tour without participants to ensure that the cause of the unscheduled cessation of operation has been corrected.
10.3. The operator shall document any unscheduled cessation of operation, including the identification of the zipline or canopy tour, the name of the employee operating the zipline or canopy tour during the unscheduled cessation, and a complete description of the incident, including the date, time, weather conditions, location, number of participants, etc.
§42-10-11. Imminent Danger.
11.1. If the Commissioner or a special inspector determines that a zipline or canopy tour presents an imminent danger, he or she shall immediately give written notification to the zipline or canopy tour owner or operator, advising him or her that the zipline or canopy tour shall be immediately removed from service.
11.2. If the owner or operator does not immediately remove the zipline or canopy tour from service, the inspector shall immediately report the imminent danger to the Commissioner.
11.3. If the owner or operator does not immediately remove the zipline or canopy tour from service, the Commissioner may seek a temporary or permanent restraining order or injunction to prohibit the continuing operation of the zipline or canopy tour.
§42-10-12. Serious Injury or Fatality.
12.1. If a participant or member of the general public is involved in an accident related to the operation of a zipline or canopy tour that results in a serious injury or a fatality, the owner or operator shall immediately shut down the operation of the zipline or canopy tour and secure the safety of other participants and the general public.
12.2. An owner or operator shall ensure that the scene of a serious injury or fatality is left intact from the time of the accident and shall ensure that the zipline or canopy tour involved is not removed from the scene of the accident without written authorization from the Commissioner or a law enforcement officer.
12.3. The owner, operator, and any employees who witnessed the accident or who operated the zipline or canopy tour when the accident occurred shall be available to be interviewed by the Commissioner.
12.4. The owner of the zipline or canopy tour shall make a report of the injury or fatality to the Commissioner within 24 hours of its occurrence, using the Division’s emergency contact protocol.
12.4.a. After the owner of the zipline or canopy tour notifies the Commissioner of a serious injury or fatality, the Commissioner shall, with reasonable promptness, advise the owner whether the zipline or canopy tour shall remain shut down pending investigation and inspection or whether it can be placed back in service.
12.4.b. In deciding whether the zipline or canopy tour shall remain shut down or whether it can be placed back in service, the Commissioner’s sole consideration shall be the safety of participants and the general public.
12.5. The owner shall document the accident, to include the full name, address and telephone number of the injured person, a description of his or her injuries, identification of the zipline or canopy tour involved, the names and addresses of the owner and employees who witnessed the accident, and any other pertinent information describing the events leading up to the accident.
12.6. An owner or operator shall keep a record of every accident or fatality with the certificate of inspection, which shall be readily accessible to the general public. The record shall include the following information:
12.6.a. The date of every accident or fatality;
12.6.b. A description of the type of accident;
12.6.c. The number of people injured or killed; and
12.6.d. A description of the types of injuries.
§42-10-13. Reports and Records.
13.1. The owner of the zipline or canopy tour shall retain all reports, documents, photographs and records required by this rule for not less than 3 years from the date of the unscheduled cessation, imminent danger notification, or serious injury or fatality.
13.2. If an owner violates any provision of this section of the rule, the Commissioner may permanently revoke the permit to operate.
The bill (Eng. Com. Sub. for H. B. No. 4220), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4236, Relating to exclusions from the definition of professional personnel for evaluation purposes.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §18A-2-12 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §18A-3C-1, §18A-3C-2 and §18A-3C-3, all to read as follows:
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-12. Performance evaluations of school personnel; professional personnel evaluation process.
(a) The state board shall adopt a written system for the evaluation of the employment performance of personnel, which system shall be applied uniformly by county boards of education in the evaluation of the employment performance of personnel employed by the board.
(b) The system adopted by the state board for evaluating the employment performance of professional personnel shall be in accordance with the provisions of this section.
(c) For purposes of this section, "professional personnel", "professional" or "professionals", means professional personnel as defined in section one, article one of this chapter but does not include professional personnel subject to the evaluation processes established pursuant to the provisions of section two, article three-c of this chapter.
(d) In developing the professional personnel performance evaluation system, and amendments thereto, the state board shall consult with the Center for Professional Development created in article three-a of this chapter. The center shall participate actively with the state board in developing written standards for evaluation which clearly specify satisfactory performance and the criteria to be used to determine whether the performance of each professional meets such those standards.
(e) The performance evaluation system shall contain, but shall not be limited to, the following information:
(1) The professional personnel positions to be evaluated, whether they be teachers, substitute teachers, administrators, principals or others;
(2) The frequency and duration of the evaluations, which shall be on a regular basis and of such frequency and duration as to insure the collection of a sufficient amount of data from which reliable conclusions and findings may be drawn. Provided, That for For school personnel with five or more years of experience who have not received an unsatisfactory rating, evaluations shall be conducted no more than once every three years unless the principal determines an evaluation for a particular school employee is needed more frequently. Provided, however, That for For classroom teachers with five or more years of experience who have not received an unsatisfactory rating, an evaluation shall be conducted or professional growth and development plan required only when the principal determines it to be is necessary for a particular classroom teacher or when a classroom teacher exercises the option of being evaluated at more frequent intervals;
(3) The evaluation shall serve the following purposes:
(A) Serve as a basis for the improvement of the performance of the personnel in their assigned duties;
(B) Provide an indicator of satisfactory performance for individual professionals;
(C) Serve as documentation for a dismissal on the grounds of unsatisfactory performance; and
(D) Serve as a basis for programs to increase the professional growth and development of professional personnel;
(4) The standards for satisfactory performance for professional personnel and the criteria to be used to determine whether the performance of each professional meets such those standards and other criteria for evaluation for each professional position evaluated. Effective July 1, 2003 and thereafter, professional Professional personnel, as appropriate, shall demonstrate competency in the knowledge and implementation of the technology standards adopted by the state board. If a professional fails to demonstrate competency in the knowledge and implementation of these standards, he or she will be subject to an improvement plan to correct the deficiencies; and
(5) Provisions for a written improvement plan, which shall be specific as to what improvements, if any, are needed in the performance of the professional and shall clearly set forth recommendations for improvements, including recommendations for additional education and training during the professional's recertification process.
(f) A professional whose performance is considered to be unsatisfactory shall be given notice of deficiencies. A remediation plan to correct deficiencies shall be developed by the employing county board of education and the professional. The professional shall be given a reasonable period of time for remediation of the deficiencies and shall receive a statement of the resources and assistance available for the purposes of correcting the deficiencies.
(g) No person may evaluate professional personnel for the purposes of this section unless the person has an administrative certificate issued by the state superintendent and has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education training approved by the state board, which will enable the person to make fair, professional, and credible evaluations of the personnel whom the person is responsible for evaluating. After July 1, 1994, no person may be issued an administrative certificate or have an administrative certificate renewed unless the state board determines that the person has successfully completed education and training in evaluation skills through the center for professional development or equivalent education and training approved by the state board.
(h) Any professional whose performance evaluation includes a written improvement plan shall be given an opportunity to improve his or her performance through the implementation of the plan. If the next performance evaluation shows that the professional is now performing satisfactorily, no further action may be taken concerning the original performance evaluation. If the evaluation shows that the professional is still not performing satisfactorily, the evaluator either shall make additional recommendations for improvement or may recommend the dismissal of the professional in accordance with the provisions of section eight of this article.
(i) Lesson plans are intended to serve as a daily guide for teachers and substitutes for the orderly presentation of the curriculum. Lesson plans may not be used as a substitute for observations by an administrator in the performance evaluation process. A classroom teacher, as defined in section one, article one of this chapter, may not be required to post his or her lesson plans on the Internet or otherwise make them available to students and parents or to include in his or her lesson plans any of the following:
(1) Teach and reteach strategies;
(2) Write to learn activities;
(3) Cultural diversity;
(4) Color coding; or
(5) Any other similar items which are not required to serve as a guide to the teacher or substitute for daily instruction; and
(j) The Legislature finds that classroom teachers must be free of unnecessary paper work so that they can focus their time on instruction. Therefore, classroom teachers may not be required to keep records or logs of routine contacts with parents or guardians.
(k) Nothing in this section may be construed to prohibit classroom teachers from voluntarily posting material on the Internet.
ARTICLE 3C. IMPROVING TEACHING AND LEARNING.
§18A-3C-1. Findings; purposes and definition.
(a) The Legislature makes the following findings:
(1) Processes set forth in this article for evaluation, teacher induction and professional growth is not intended to make up for substandard initial preparation of teachers, but instead is intended to build on a solid foundation created by the teacher preparation programs. Therefore, the Legislature expects the teacher preparation programs to graduate teachers that can perform at a level that increases student achievement. The Legislature expects that the processes set forth in this article will allow a teacher to excel beyond that level in the classroom;
(2) The comprehensive system of support provided for in this article should be implemented in a way that, as compared with the beginning teacher internship system, much more effectively provides for the professional growth of teachers;
(3) In order for the comprehensive system of support to much more effectively provide for professional growth for teachers, funding should be greatly increased over and above what has been provided for the beginning teacher internship system; and
(4) Although the quality of the teacher in the classroom is extremely important to the academic achievement of students, students cannot learn if they are not in the classroom. Therefore, attending school on a regular basis is of utmost importance to the academic success of students.
(b) The purpose of this article is to create a comprehensive infrastructure that routinely supports a continuous process for improving teaching and learning. Its focus is on developing strong teaching and school leadership, without which effective learning does not occur. The general components of this infrastructure include the following:
(1) High-quality teacher preparation, induction and evaluation;
(2) Universal support for emerging teachers including comprehensive new teacher induction and support for student teachers, teachers teaching in assignments for which they have less than a full professional credential and teacher candidates pursuing certification through an alternative route;
(3) Evaluation of the performance of teachers and leaders in demonstrating high quality professional practice, leadership and collaboration and the resulting growth in student learning;
(4) Focused improvement in teaching and learning through the use of evaluation data to inform the delivery of professional development and additional supports to improve teaching based on the evaluation results and to inform the need for improvements in teacher preparation programs; and
(5) The creation of a leadership culture that seeks and builds powerful alliances among all stakeholders focused on continuous growth in student learning.
(c) For purposes of this article “professional personnel” includes, but is not limited to, classroom teachers, assistant principals and principals as defined in section one, article one chapter eighteen-a of this code.
§18A-3C-2. Performance evaluations of professional personnel.
(a) The intent of the Legislature is to allow for a multi-step statewide implementation of performance evaluations for professional personnel pursuant to this section consistent with sound educational practices and resources available resulting in full state-wide implementation by no later than the school year 2013-2014. Beginning with the schools included in the evaluation processes for professional personnel piloted by the Department of Education during the 2011-2012 school year, additional schools or school systems shall be subject to the provisions of this article in accordance with a plan established by the state board to achieve full statewide implementation by no later than the school year 2013-2014. For schools and school systems subject to the provisions of this article, the provisions of this article shall govern when they are in conflict with other provisions of this chapter and chapter eighteen of this code. Specifically, the provisions of this article govern for the performance evaluation of classroom teachers, principals and assistant principals employed in these schools and school systems. To the extent that this article conflicts with the provisions of section twelve, article two of this chapter relating to professional personnel performance evaluations, this article shall govern. The state board shall submit a report on its plan for the phased implementation of this article to the Legislative Oversight Commission on Education Accountability at the Commission’s July interim meeting in each year of the phased implementation. The report shall include an update on the implementation of this article including, but not limited to, the positions to be evaluated, the evaluation process and a list of the schools and school systems subject to the provisions of this article.
(b) Before July 1, 2013, the state board shall adopt a legislative rule in accordance with article three-b, chapter twenty-nine-a of this code, for evaluating the performance of each professional person each year. The rule shall provide for performance evaluations of professional personnel to be conducted in accordance with this section in each school and school system beginning with the 2013-14 school year.
(c) The process adopted by the state board for evaluating the performance of classroom teachers shall incorporate at least the following:
(1) Alignment with the West Virginia professional teaching standards adopted by the state board that establish the foundation for educator preparation, teacher assessment and professional development throughout the state;
(2) Employment of the professional teaching standards to provide explicit and extensive measures of the work of teaching and what teachers must know and be able to do and provide evaluative measures of educator performance;
(3) The use of two pieces of evidence at two points in time over the instructional term to demonstrate student learning as an indicator of educator performance; and
(4) The use of school’s school-wide student learning growth as measured by the state-wide summative assessment as an evaluative measure of all educators employed in the school.
Eighty percent of the evaluation shall be based on an appraisal of the educator’s ability to perform the critical standard elements of the professional teaching standards. The appraisal shall include conferences with the evaluator reinforced through observation. Twenty percent of the evaluation shall be based on the evidence of the student learning, of which fifteen percent shall be evidence of the student learning of students assigned to the educator and five percent shall be student learning growth measured by the school-wide score on the state summative assessment.
(d) The process adopted by the state board for evaluating the performance of principals and assistant principals shall include, but not be limited to, the following:
(1) Alignment with the West Virginia professional leadership standards adopted by the state board establishing the responsibility of principals for the collective success of their school including the learning, growth and achievement of students, staff and self;
(2) Employment of the professional leadership standards to provide explicit and extensive measures of the work of school leadership focused on the continuous improvement of teaching and learning;
(3) The use of data, evidence and artifacts to confirm the principal’s performance on achieving the goals established by the principal and superintendent based on the identified needs of the principal and the school including, but not limited to, the school’s score on the state summative assessment; and
(4) The use of stakeholder surveys of students, parents and teachers regarding the overall effectiveness of the principal on elements of the school leader standards.
(e) Evaluations of the performance of professional personnel shall serve the following purposes:
(1) Serve as a basis for the improvement of the performance of the professional personnel in their assigned duties;
(2) Serve as the basis for providing professional development specifically targeted on the area or areas identified through the evaluation process as needing improvement. If possible, this targeted professional development should be delivered at the school-site using collaborative processes, mentoring or coaching or other approaches that maximize use of the instructional setting;
(3) Serve as the basis for establishing priorities for the provision of county-level professional development when aggregate evaluation data from the county’s schools indicates an area or areas of needed improvement;
(4) Serve as a basis for informing the teacher preparation programs in this state of an area or areas of needed improvement in the programs, or informing a specific program of needed improvement, when state-level aggregate evaluation data indicates that beginning teachers who have graduated from the program have specific weaknesses;
(5) Provide an indicator of level of performance of the professional personnel;
(6) Serve as a basis for programs to increase the professional growth and development of professional personnel; and
(7) Serve as documentation for a dismissal on the grounds of unsatisfactory performance.
(f) The rule adopted by the state board shall include standards for performance of professional personnel and the criteria to be used to determine whether their performance meets the standards. The rule also shall include guidance on best practices for providing time within the school day for teachers subject to performance evaluations under this section to participate in the collaborative mentoring or coaching and planning processes necessary for execution of the performance evaluation process and achieving advanced levels of performance.
(g) The rule adopted by the state board shall include provisions for written improvement plans when necessary to improve the performance of the professional personnel. The written improvement plan shall be specific as to what improvements are needed in the performance of the professional personnel and shall clearly set forth recommendations for improvements including recommendations for additional education and training of professionals subject to recertification. Professional personnel whose performance evaluation includes a written improvement plan shall be given an opportunity to improve his or her performance through the implementation of the plan.
(h) A professional person whose performance is considered to be unsatisfactory shall be given written notice of his of her deficiencies. A written improvement plan to correct these deficiencies shall be developed by the employing county board and the employee. The professional person shall be given a reasonable period of time, not exceeding twelve months, to accomplish the requirements of the improvement plan and shall receive a written statement of the resources and assistance available for the purposes of correcting the deficiencies. If the next performance evaluation shows that the professional is now performing satisfactorily, no further action may be taken concerning the original performance evaluation. If the evaluation shows that the professional is still not performing satisfactorily, the evaluator either shall make additional written recommendations for improvement or may recommend the dismissal of the professional personnel in accordance with the provisions of section eight, article two of this chapter.
(i) No person may evaluate professional personnel for the purposes of this section unless the person has an administrative certificate issued by the state superintendent and has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education training approved by the state board, which will enable the person to make fair, professional, and credible evaluations of the personnel whom the person is responsible for evaluating.
§18A-3C-3. Comprehensive system for teacher induction and professional growth.
(a) The intent of the Legislature is to allow for a multistep statewide implementation of a comprehensive system of support for building professional practice of beginning teachers, specifically those on the initial and intermediate progressions, consistent with sound educational practices and resources available. In this regard, it is the intent of the Legislature that the transition of schools and school systems to a comprehensive system of support that includes support for improved professional performance targeted on deficiencies identified through the evaluation process will be implemented concurrent with the first year that a school or system receives final evaluation results from the performance evaluation process pursuant to section two of this article. For schools and school systems subject to the provisions of this article, the provisions of this article govern when they are in conflict with section two-b, article three of this chapter relating to beginning teacher internships, or in conflict with other provisions of this chapter and chapter eighteen of this code. Further, because of significant variability among the counties, not only in the size of their teaching force, distribution of facilities and available resources, but also because of their varying needs, the Legislature intends for the implementation of this section to be accomplished in a manner that provides adequate flexibility to the counties to design and implement a comprehensive system of support for improving professional performance that best achieves the goals of this section within the county. Finally, because of the critical importance of ensuring that all teachers perform at the accomplished level or higher in the delivery of instruction that at least meets the West Virginia professional teaching standards and because achieving this objective at a minimum entails providing assistance to address the needs as indicated by the data informed results of annual performance evaluations, including the self-assessed needs of the teachers themselves, the Legislature expects the highest priority for county, regional and state professional development will be on meeting these needs and that the transition to a comprehensive system of support for improving professional practice will reflect substantial redirection of existing professional development resources toward this highest priority.
(b) On or before July 1, 2012, the state board shall publish guidelines on the design and implementation of a comprehensive system of support for improving professional practice. The purpose of the guidelines is to assist the county board with the design and implementation of a system that best achieves the goals of this section within the county. The guidelines may include examples of best practices and resources available to county boards to assist them with the design and implementation of a comprehensive system.
(c) Effective for the school year beginning July 1, 2013, and thereafter, a county board is not eligible to receive state funding appropriated for the purposes of this section or any other provision of law related to beginning teacher internships and mentor teachers unless it has adopted a plan for implementation of a comprehensive system of support for improving professional practice, the plan has been verified by the state board as meeting the requirements of this section and the county is implementing the plan. The plan shall address the following:
(1) The manner in which the county will provide the strong school-based support and supervision that will assist beginning teachers in developing instructional and management strategies, procedural and policy expertise, and other professional practices they need to be successful in the classroom and perform at the accomplished level. Nothing in this subdivision prohibits a school or school system that was granted an exception or waiver from section two-c, article three of this chapter prior to the effective date of this section from continuing implementation of the program in accordance with the exception or waiver;
(2) The manner in which the county in cooperation with the teacher preparation programs in this state will provide strong school-based support and assistance necessary to make student teaching a productive learning experience;
(3) The manner in which the county will use the data from the educator performance evaluation system to serve as the basis for providing professional development specifically targeted on the area or areas identified through the evaluation process as needing improvement. If possible, this targeted professional development should be delivered at the school-site using collaborative processes, mentoring or coaching or other approaches that maximize use of the instructional setting;
(4) The manner in which the county will use the data from the educator performance evaluation system to serve as the basis for establishing priorities for the provision of county-level professional development when aggregate evaluation data from the county’s schools indicates an area or areas of needed improvement;
(5) If a county uses master teachers, mentors, academic coaches or any other approaches using individual employees to provide support, supervision or other professional development or training to other employees for the purpose of improving their professional practice, the manner in which the county will select each of these individual employees based on demonstrated superior performance and competence as well as the manner in which the county will coordinate support for these employees;
(6) The manner in which the county will use local resources available including, but not limited to, funds for professional development and academic coaches, to focus on the priority professional development goals of this section;
(7) The manner in which the county will adjust its scheduling, use of substitutes, collaborative planning time, calendar or other measures as may be necessary to provide sufficient time for professional personnel to accomplish the goals of this section as set forth in the county’s plan; and
(8) The manner in which the county will monitor and evaluate the effectiveness of implementation and outcomes of the county system of support for improving professional practice.
(d) Effective the school year beginning July 1, 2013, and thereafter, appropriations for beginning teacher mentors and any new appropriation which may be made for the purposes of this section shall be expended by county boards only to accomplish the activities as set forth in their county plan pursuant to this section. Effective the school year beginning July 1, 2013, and thereafter, no specific level of compensation is guaranteed for any employee service or employment as a mentor and such service or employment is not subject to the provisions of this code governing extra duty contracts.
(e) The Legislative Oversight Commission on Education Accountability shall review the progress of the implementation of this article and may make any recommendations it considers necessary to the Legislature during the 2013 regular legislative session.
The bill (Eng. Com. Sub. for H. B. No. 4236), as amended, was then ordered to third reading.
On motion of Senator Unger, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Barnes, Beach, Boley, Browning, Chafin, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.
The nays were: None.
Absent: Edgell and Helmick--2.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 4236) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Jenkins, Kirkendoll, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Mr. President)--32.
The nays were: None.
Absent: Edgell and Helmick--2.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4236) passed.
The following amendment to the title of the bill, from the Committee on Education, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 4236--A Bill to amend and reenact §18A-2-12 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new article, designated §18A-3C-1, §18A-3C-2 and §18A-3C-3, all relating to creating a comprehensive infrastructure that routinely supports a continuous process for improving teaching and learning; requiring state board rule for evaluating the performance of professional personnel each year; defining professional personnel for certain purposes; requiring process adopted for evaluating the performance of classroom teachers to incorporate certain components; requiring process adopted for evaluating the performance of principals and assistant principals to include certain components; setting forth the purposes the evaluations of the performance of professional personnel must serve; requiring rule to include standards for performance, criteria for determining whether standards are met, guidance on best practices for providing time within the school day for teachers to participate in certain activities and provisions for written improvement plans; setting forth process for professional person whose performance is considered unsatisfactory; requiring the state board to publish guidelines on the design and implementation of a comprehensive system of support for improving professional practice; providing that a county board is not eligible to receive state funding appropriated for the purposes of any provision of law related to beginning teacher internships and mentor teachers unless certain conditions relating to a plan for implementation of a comprehensive system of support for improving professional practice are satisfied; setting forth what the plan must address; providing that certain appropriation only be expended by county boards to accomplish the activities set forth in their plan; providing that no specific level of compensation is guaranteed for service or employment as a mentor; providing that service or employment is not subject to provisions governing extra duty contracts; requiring state board report to the Legislative Oversight Commission on Education Accountability; and requiring commission to review progress of the implementation.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4238, Establishing procedures for address confidentiality program participants on the special absentee voting list.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-1. Persons eligible to vote absentee ballots.
(a) All registered and other qualified voters of the county may vote an absentee ballot during the period of early voting in person.
(b) Registered voters and other qualified voters in the county are authorized to vote an absentee ballot by mail in the following circumstances:
(1) Any voter who is confined to a specific location and prevented from voting in person throughout the period of voting in person because of:
(A) Illness, injury or other medical reason;
(B) Physical disability or immobility due to extreme advanced age; or
(C) Incarceration or home detention: Provided, That the underlying conviction is not for a crime which is a felony or a violation of section twelve, thirteen or sixteen, article nine of this chapter involving bribery in an election;
(2) Any voter who is absent from the county throughout the period and available hours for voting in person because of:
(A) Personal or business travel;
(B) Attendance at a college, university or other place of education or training; or
(C) Employment which because of hours worked and distance from the county seat make voting in person impossible;
(3) Any voter absent from the county throughout the period and available hours for voting in person and who is an absent uniformed services voter or overseas voter, as defined by 42 U. S. C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, including members of the uniformed services on active duty, members of the merchant marine, spouses and dependents of those members on active duty and persons who reside outside the United States and are qualified to vote in the last place in which the person was domiciled before leaving the United States;
(4) Any voter who is required to dwell temporarily outside the county and is absent from the county throughout the time for voting in person because of:
(A) Serving as an elected or appointed federal or state officer; or
(B) Serving in any other documented employment assignment of specific duration of four years or less; and
(5) Any voter for whom the designated area for absentee voting within the county courthouse or annex of the courthouse and the voter’s assigned polling place are inaccessible because of his or her physical disability; and
(6) Any voter who is participating in the Address Confidentiality Program as established by section one hundred three, article twenty-eight-a, chapter forty-eight of this code.
(c) Registered voters and other qualified voters in the county may, in the following circumstances, vote an emergency absentee ballot, subject to the availability of the services as provided in this article:
(1) Any voter who is confined or expects to be confined in a hospital or other duly licensed health care facility within the county of residence or other authorized area, as provided in this article, on the day of the election;
(2) Any voter who resides in a nursing home within the county of residence and would be otherwise unable to vote in person, providing the county commission has authorized the services if the voter has resided in the nursing home for a period of less than thirty days; and
(3) Any voter who is working as a replacement poll worker and is assigned to a precinct out of his or her voting district, if the assignment was made after the period for voting an absentee ballot in person has expired.
§3-3-2. Authority to conduct absentee voting; absentee voting application; form.
(a) Absentee voting is to be supervised and conducted by the proper official for the political division in which the election is held, in conjunction with the ballot commissioners appointed from each political party, as follows:
(1) For any election held throughout the county, within a political subdivision or territory other than a municipality, or within a municipality when the municipal election is conducted in conjunction with a county election, the clerk of the county commission; or
(2) The municipal recorder or other officer authorized by charter or ordinance provisions to conduct absentee voting, for any election held entirely within the municipality, or in the case of annexation elections, within the area affected. The terms "clerk" or “clerk of the county commission” or “official designated to supervise and conduct absentee voting” used elsewhere in this article means municipal recorder or other officer in the case of municipal elections.
(b) A person authorized and desiring to vote a mail-in absentee ballot in any primary, general or special election is to make application in writing in the proper form to the proper official as follows:
(1) The completed application is to be on a form prescribed by the Secretary of State and is to contain the name, date of birth and political affiliation of the voter, residence address within the county, the address to which the ballot is to be mailed, the authorized reason, if any, for which the absentee ballot is requested and, if the reason is illness or hospitalization, the name and telephone number of the attending physician, the signature of the voter to a declaration made under the penalties for false swearing as provided in section three, article nine of this chapter that the statements and declarations contained in the application are true, any additional information which the voter is required to supply, any affidavit which may be required and an indication as to whether it is an application for voting in person or by mail; or
(2) For any person authorized to vote an absentee ballot under the provisions of 42 U. S. C. §1973, et seq., the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the completed application may be on the federal postcard application for absentee ballot form issued under authority of that act, submitted by mail or electronically; or
(3) For any person unable to obtain the official form for absentee balloting at a reasonable time before the deadline for an application for an absentee ballot by mail is to be received by the proper official, the completed application may be in a form set out by the voter, provided all information required to meet the provisions of this article is set forth and the application is signed by the voter requesting the ballot; or
(4) A person authorized to vote an absentee ballot who is participating in the Address Confidentiality Program as established by section one hundred three, article twenty-eight-a, chapter forty-eight of this code, may apply to the program manager within the office of the Secretary of State to vote a mail-in absentee ballot. The program manager will notify the designated county contact to coordinate the application and the provision of an absentee ballot to the program participant.
§3-3-2b. Special absentee voting list.
(a) Any person who is registered and otherwise qualified to vote and who is permanently and totally physically disabled and who is unable to vote in person at the polls in an election may apply to the official designated to supervise and conduct absentee voting for placement on the special absentee voting list.
(b) Any person who is registered and otherwise qualified to vote and who is participating in the Address Confidentiality Program as established by section one hundred three, article twenty-eight-a, chapter forty-eight of this code, may apply to the program manager within the office of the Secretary of State for placement on the special absentee voting list. The program manager will notify the designated county contact to coordinate the provision of an absentee ballot to the program participant.
(b) (c) The application is to be on a form prescribed by the Secretary of State which is to include the:
(1) The voter's name and signature,
(2) Residence address unless the applicant is a participant in the Address Confidentiality Program as established by section one hundred three, article twenty-eight-a, chapter forty-eight of this code; and
(3) (A) A statement that the voter is permanently and totally physically disabled and would be unable to vote in person at the polls in any election, a description of the nature of that disability, and a statement signed by a physician to that effect; or
(B) A statement that the voter is a program participant in the Address Confidentiality Program.
(c) (d) Upon receipt of a properly completed application, the official designated to supervise and conduct absentee voting shall enter the name on the special absentee voting list, which is to be maintained in a secure and permanent record. The person's name will remain active on the list until: (1) The person requests in writing that his or her name be removed; (2) the person removes his or her residence from the county, is purged from the voter registration books or otherwise becomes ineligible to vote; (3) a ballot mailed to the address provided on the application is returned undeliverable by the United States postal service; or (4) the death of the person; or (5) in the case of a Address Confidentiality Program participant, withdrawal or removal from that program.
(d) (e) The official designated to supervise and conduct absentee voting shall mail an application for an absentee ballot by mail to each person active on the special absentee voting list due to disability not later than forty-six days before each election. The Address Confidentiality Program manager shall, in coordination with the designated county contact, mail to each person on the special absentee voting list due to participation in the Address Confidentiality Program an absentee ballot by mail not later than forty-six days before each election.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4238) was advanced to third reading with the Judiciary committee amendment pending and the right reserved to consider other amendments to the bill on that reading.
Eng. Com. Sub. for House Bill No. 4239, Increasing the membership of the West Virginia Board of Osteopathy.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §30-14-1, §30-14-2, §30-14-3 and §30-14-12b of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-1. License required.
It is unlawful for any person to practice or offer to practice medicine and surgery as an osteopathic physician and surgeon in this state without a license or permit issued by the West Virginia Board of Osteopathy Osteopathic Medicine: Provided, That any license heretofore issued under the laws of this state, authorizing its holder to practice osteopathy and surgery, shall in no way be affected by the enactment of this article; except that the holder of every such license shall be subject to all of the provisions of this article respecting the requirements and obligations herein prescribed for the continuance in force of such license.
§30-14-2. Definitions.
(a) "Accredited osteopathic college" means a college of osteopathy and surgery which requires as a minimum prerequisite for admission preprofessional training of at least two years of academic work in specified scientific subjects, as prescribed by the board or by the college accrediting agency of the American Osteopathic Association, in an accredited college of arts and sciences and which requires for graduation a course of study approved by the board in accordance with the minimum standards established by the American Osteopathic Association;
(b) "Approved program of post-graduate clinical training" means a program of clinical training approved by, or subject of approval by, the American Osteopathic Association or approved by the Accreditation Council for Graduate Medical Education for the purposes of intern or resident training;
(c) "Board" means the West Virginia Board of Osteopathy Osteopathic Medicine: Provided, That where used elsewhere in the Code, the West Virginia Board of Osteopathy and Board of Osteopathy shall also mean the West Virginia Board of Osteopathic Medicine;
(d) "License" means legal authorization issued by the board to a fully qualified osteopathic physician to engage in the regular practice of osteopathic medicine and surgery;
(e) "Osteopathy" means that system of the healing art which places the chief emphasis on the structural integrity of the body mechanism as being the most important single factor in maintaining the well-being of the organism in health and disease;
(f) "Permit" means a limited, legal authorization issued by the board to an osteopathic physician to practice osteopathic medicine and surgery in this state while serving under special circumstances of public need or while undergoing post-graduate clinical training as a prerequisite to licensure;
(g) "Reciprocal endorsement" means a duly authenticated verification of the board, addressed to a board or agency of another country, state, territory, province or the District of Columbia, vouching that a license issued to an osteopathic physician and surgeon pursuant to the laws of this state is currently valid and not suspended or revoked for any cause or causes specified in this article.
§30-14-3. Board of Osteopathy.
(a) The West Virginia Board of Osteopathy is continued and effective July 1, 2012 shall be known as the West Virginia Board of Osteopathic Medicine. The members of the board serving on June 30, 2012, shall continue to serve until a successor is appointed and may be reappointed.
(b) To be effective July 1, 2012, the Governor shall appoint, by and with advice and consent of the Senate:
(1) Two persons who are licensed osteopathic physicians or surgeons, each for a term of five years;
(2) One person who is a licensed osteopathic physician or surgeon for a term of four years;
(3) One person who is a licensed osteopathic physician or surgeon for a term of three years;
(4) One person who is a licensed osteopathic physician assistant for a term of four years; and
(5) Two citizen members, who are not licensed under the provisions of this article and who do not perform any services related to the practice of the profession regulated under the provisions of this article, one for a term of five years, and one for a term of four years.
(c) After the initial appointment, the term shall be for five years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.
(d) Commencing July 1, 2012, the West Virginia Board of Osteopathic Medicine shall consist of the following seven members:
(1) Four licensed osteopathic physicians and surgeons;
(2) One licensed osteopathic physician assistant; and
(3) Two citizen members, who are not associated with the practice of osteopathy.
(e) The West Virginia Osteopathic Medical Association may submit recommendations to the Governor for the appointment of an osteopathic physician board member, and the West Virginia Association of Physician Assistants may submit recommendations to the Governor for the appointment of an osteopathic physician assistant board member.
(f) Each licensed member of the board, at the time of his or her appointment, must have held a license in this state for a period of not less than five years immediately preceding the appointment.
(g) Each member of the board must be a U. S. citizen and a resident of this state for a period of not less than five years immediately preceding the appointment and while serving as a member of the board.
(h) A member may not serve more than two consecutive full terms. A member having served two consecutive full terms may not be appointed for one year after completion of his or her second full term. A member may continue to serve until a successor has been appointed and has qualified.
(i) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.
(j) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.
(k) A member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended or revoked, he or she is convicted of a felony under the laws of any jurisdiction, or he or she becomes a nonresident of this state.
(l) The board shall elect annually one of its members as a chairperson and one of its members as a secretary who shall serve at the will of the board.
(m) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.
(n) A simple majority of the membership serving on the board at a given time constitutes a quorum.
(o) The board shall hold at least two meetings each year. Other meetings may be held at the call of the chairperson or upon the written request of two members, at the time and place as designated in the call or request.
(p) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.
(q) The members of the board when acting in good faith, without malice and within the scope of their duties as board members shall enjoy immunity from individual civil liability.
§30-14-12b. Special volunteer medical license; civil immunity for voluntary services rendered to indigents.
(a) There is hereby established a special volunteer medical license for physicians retired or retiring from the active practice of osteopathy who wish to donate their expertise for the medical care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer medical license shall be issued by the West Virginia board of osteopathy Board of Osteopathic Medicine to physicians licensed or otherwise eligible for licensure under this article and the rules promulgated hereunder without the payment of any application fee, license fee or renewal fee, shall be issued for a fiscal year or part thereof, and shall be renewable annually. The board shall develop application forms for the special license provided for in this subsection which shall contain the physician's acknowledgment that: (1) The physician's practice under the special volunteer medical license will be exclusively and totally devoted to providing medical care to needy and indigent persons in West Virginia; (2) the physician will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any medical services rendered under the special volunteer medical license; (3) the physician will supply any supporting documentation that the board may reasonably require; and (4) the physician agrees to continue to participate in continuing medical education as required of physicians in active practice.
(b) Any physician who renders any medical service to indigent and needy patients of clinics organized, in whole or in part, for the delivery of health care services without charge under a special volunteer medical license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service at the clinic unless the act or omission was the result of the physician's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the physician and the clinic pursuant to which the physician will provide voluntary noncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician at the clinic: Provided, That any clinic entering into such written agreement shall be required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (a) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge shall not be relieved from imputed liability for the negligent acts of a physician rendering voluntary medical services at or for the clinic under a special volunteer medical license authorized under subsection (a) of this section.
(d) For purposes of this section, "otherwise eligible for licensure" means the satisfaction of all the requirements for licensure as listed in section ten of this article and in the legislative rules promulgated hereunder, except the fee requirements of subsections (b) and (d) of said section and of the legislative rule promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer medical license to any physician whose medical license is or has been subject to any disciplinary action or to any physician who has surrendered a medical license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her medical license, or who has elected to place a medical license in inactive status in lieu of having a complaint initiated or other action taken against his or her medical license, or who have been denied a medical license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a physician who holds a special volunteer medical license.
The bill (Eng. Com. Sub. for H. B. No. 4239), as amended, was then ordered to third reading.
Eng. House Bill No. 4299, Authorizing a county board of education to use the services of a bus operator from another county in certain circumstances.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. House Bill No. 4320, Relating to the settlement of violations of the Hazardous Waste Management Act by consent agreements.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4330, Providing that drivers licenses may contain information designating the licensee as a person who is an honorably discharged veteran.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 4351, Relating to mine safety.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §15-5B-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §15-5B-6; that §22A-1-4, §22A-1-14, and §22A-1-21 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §22A-1-13a and §22A-1-40; that said code be amended by adding thereto a new article, designated §22A-1A-1, §22A-1A-2, §22A-1A-3 and §22A-1A-4; that §22A-2-2, §22A-2-12, §22A-2-16, §22A-2-20, §22A-2-24, §22A-2-43, §22A-2-55 and §22A-2-66 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §22A-2-43a; that §22A-6-4 of said code be amended and reenacted; that said code be amended by adding thereto two new sections, designated §22A-6-13 and §22A-6-14; that §22A-7-5 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §22A-7-5a; and that said code be amended by adding thereto a new article, designated §22A-12-1, all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 5B. MINE AND INDUSTRIAL ACCIDENT RAPID RESPONSE SYSTEM.
§15-5B-3. Emergency mine response.
(a) To assist the Division of Homeland Security and Emergency Management in implementing and operating the Mine and Industrial Accident Rapid Response System, the Office of Miners' Health, Safety and Training shall, on a quarterly basis, provide the emergency operations center with a mine emergency contact list. In the event of any change in the information contained in the mine emergency contact list, such the changes shall be provided immediately to the emergency operations center. The mine emergency contact list shall include the following information:
(1) The names and telephone numbers of the Director of the Office of Miners' Health, Safety and Training, or his or her designee, including at least one telephone number at which the director or designee may be reached at any time;
(2) The names and telephone numbers of all district mine inspectors, including at least one telephone number for each inspector at which each inspector may be reached at any time;
(3) A current listing of all regional offices or districts of the Office of Miners' Health, Safety and Training, including a detailed description of the geographical areas served by each regional office or district; and
(4) The names, locations and telephone numbers of all mine rescue stations, including at least one telephone number for each station that may be called twenty-four hours a day and a listing of all mines that each mine rescue station serves in accordance with the provisions of section thirty-five, article one, chapter twenty-two-a of this code.
(b) Upon the receipt of an emergency call regarding any accident, as defined in section sixty-six, article two, chapter twenty-two-a of this code, in or about any mine, the emergency operations center shall immediately notify:
(1) The Director of the Office of Miners' Health, Safety and Training or his or her designee;
(2) The district mine inspector assigned to the district or region in which the accident occurred; and
(3) Local emergency service personnel in the area in which the accident occurred.
(c) The director or his or her designee shall determine the necessity for and contact all mine rescue stations that provide rescue coverage to the mine in question.
(d) In the event that an emergency call regarding any accident, as defined in section sixty-six, article two, chapter twenty-two-a of this code, in or about any mine, is initially received by a county answering point, as defined in article six, chapter twenty-four of this code, the call shall be immediately forwarded to the Mine and Industrial Accident Emergency Operations Center.
(e) Nothing in this section shall be construed to relieve an operator, as defined in section two, article one, chapter twenty-two-a of this code, from any reporting or notification obligation under section sixty-six, article two, chapter twenty-two-a of this code and under federal law.
(f) The Mine and Industrial Accident Rapid Response System and the emergency operations center are designed and intended to provide communications assistance to emergency responders and other responsible persons. Nothing in this section shall be construed to conflict with the responsibility and authority of an operator to provide mine rescue coverage in accordance with the provisions of section thirty-five, article one, chapter twenty-two-a of this code or the authority of the Director of the Office of Miners' Health, Safety and Training to assign mine rescue teams under the provisions of subsection (d) of said section or to exercise any other authority provided in chapter twenty-two-a of this code.
§15-5B-6. Mine Safety Anonymous Tip Hotline.
The Director of the Division of Homeland Security and Emergency Management shall maintain a toll free number that allows callers to report mine safety violations and hazardous coal mining conditions and practices. The information collected shall be provided to the Office of Miners’ Health, Safety and Training. No information may be submitted to the Office of Miners’ Health, Safety and Training that would allow identification of the person placing the call. The calls are confidential and any documentation thereof or related thereto is not subject to release and is exempt from the provisions of article one, chapter twenty-nine-b of this code. The director shall distribute printed information to all state mining operations alerting miners to the existence of the toll free line. Each mining operation shall post this notice at the location used to post notices pursuant to section eighteen, article one, chapter twenty-two-a of this code.
CHAPTER 22A. MINER HEALTH, SAFETY AND TRAINING.
ARTICLE 1. OFFICE OF MINERS’ HEALTH, SAFETY AND TRAINING; ADMINISTRATION; ENFORCEMENT.
§22A-1-4. Powers and duties of the Director of the Office of Miners’ Health, Safety and Training
(a) The Director of the Office of Miners' Health, Safety and Training is hereby empowered and it is his or her duty to administer and enforce such the provisions of this chapter relating to health and safety inspections and enforcement and training in surface and underground coal mines, underground clay mines, open pit mines, cement manufacturing plants and underground limestone and sandstone mines.
(b) The Director of the Office of Miners' Health, Safety and Training has full charge of the division. The director has the power and duty to:
(1) Supervise and direct the execution and enforcement of the provisions of this article.
(2) Employ such assistants, clerks, stenographers and other employees as may be necessary to fully and effectively carry out his or her responsibilities and fix their compensation, except as otherwise provided in this article.
(3) Assign mine inspectors to divisions or districts in accordance with the provisions of section eight of this article as may be necessary to fully and effectively carry out the provisions of this law, including the training of inspectors for the specialized requirements of surface mining, shaft and slope sinking and surface installations and to supervise and direct such the mine inspectors in the performance of their duties.
(4) Suspend, for good cause, any such mine inspector without compensation for a period not exceeding thirty days in any calendar year.
(5) Prepare report forms to be used by mine inspectors in making their findings, orders and notices, upon inspections made in accordance with this article.
(6) Hear and determine applications made by mine operators for the annulment or revision of orders made by mine inspectors, and to make inspections of mines, in accordance with the provisions of this article.
(7) Cause a properly indexed permanent and public record to be kept of all inspections made by himself or by mine inspectors.
(8) Make annually a full and complete written report of the administration of the office to the Governor and the Legislature of the state for the year ending June 30. The report shall include the number of visits and inspections of mines in the state by mine inspectors, the quantity of coal, coke and other minerals (excluding oil and gas) produced in the state, the number of individuals employed, number of mines in operation, statistics with regard to health and safety of persons working in the mines including the causes of injuries and deaths, improvements made, prosecutions, the total funds of the office from all sources identifying each source of such the funds, the expenditures of the office, the surplus or deficit of the office at the beginning and end of the year, the amount of fines collected, the amount of fines imposed, the value of fines pending, the number and type of violations found, the amount of fines imposed, levied and turned over for collection, the total amount of fines levied but not paid during the prior year, the titles and salaries of all inspectors and other officials of the office, the number of inspections made by each inspector, the number and type of violations found by each inspector. However, no inspector may be identified by name in this report. Such reports shall be filed with the Governor and the Legislature on or before December 31 of the same year for which it was made, and shall upon proper authority be printed and distributed to interested persons.
(9) Call or subpoena witnesses, for the purpose of conducting hearings into mine fires, mine explosions or any mine accident; to administer oaths and to require production of any books, papers, records or other documents relevant or material to any hearing, investigation or examination of any mine permitted by this chapter. Any witness so called or subpoenaed shall receive $40 per diem and shall receive mileage at the rate of $.15 for each mile actually traveled, which shall be paid out of the State Treasury upon a requisition upon the State Auditor, properly certified by such the witness.
(10) Institute civil actions for relief, including permanent or temporary injunctions, restraining orders, or any other appropriate action in the appropriate federal or state court whenever any operator or the operator's agent violates or fails or refuses to comply with any lawful order, notice or decision issued by the director or his or her representative.
(11) Beginning January 1, 2013, the director shall share information regarding suspension or revocation of a certificate of a certified person, as defined in this article for violation of the substance abuse provisions of article one-a of this chapter with other states that subject similar persons to disciplinary action for violation of a substance abuse policy.
(12) The director shall propose rules for legislative approval pursuant to article three, chapter twenty-nine-a of this code, a rule establishing a program for the sharing of information between employers who employ certified persons regarding the discharge of persons in safety sensitive positions as defined in section one, article one-a of this chapter for violation of an employer’s substance abuse policy.
(11) (13) Perform all other duties which are expressly imposed upon him or her by the provisions of this chapter.
(12) (14) Impose reasonable fees upon applicants taking tests administered pursuant to the requirements of this chapter.
(13) (15) Impose reasonable fees for the issuance of certifications required under this chapter.
(14) (16) Prepare study guides and other forms of publications relating to mine safety and charge a reasonable fee for the sale of the publications.
(15) (17) Make all records of the office open for inspection of interested persons and the public.
(c) The Director of the Office of Miners' Health, Safety and Training, or his or her designee, upon receipt of the list of approved innovative mine safety technologies from the Mine Safety Technology Task Force, has thirty days to approve or amend the list as provided in section four, article thirteen-bb, chapter eleven of this code. At the expiration of the time period, the director shall publish the list of approved innovative mine safety technologies as provided in section four, article thirteen-bb, chapter eleven of this code.
§22A-1-13a. Study of mine inspector qualification, compensation, training and inspection programs.
The director is directed to conduct a study of the minimum qualifications for mine inspectors, the minimum compensation paid to mine inspectors and the overall training program established for mine inspectors. The study shall identify ways to attract and retain new, qualified mine inspectors to minimize the effect of the anticipated retirement of a significant number of current inspectors. Additionally, the study shall examine ways to improve the training programs for mine inspectors by focusing on technological advances in coal mining techniques, best practices used in modern coal mines and proper mine ventilation. Further, the director shall perform an assessment of the resources and qualification of inspectors necessary to approve mine ventilation plans. Finally, the study shall make recommendations on how to reassess mine inspection priorities to ensure that mines having a history of numerous safety violations are inspected more frequently than mines having a history of comparatively few safety violations while preserving the minimum number of inspections required by the code. By December 31, 2012, the Office of Miners’ Health, Safety and Training shall report to the Legislature’s Joint Committee on Government and Finance with recommendations regarding the implementation of its findings.
§22A-1-14. Director and inspectors authorized to enter mines; duties of inspectors to examine mines; no advance notice of an inspection; reports after fatal accidents.
(a) The director, or his or her authorized representative, has authority to visit, enter, and examine any mine, whether underground or on the surface, and may call for the assistance of any district mine inspector or inspectors whenever such assistance is necessary in the examination of any mine. The operator of every coal mine shall furnish the director or his or her authorized representative proper facilities for entering such the mine and making examination or obtaining information.
(b) If miners or one of their authorized representatives, have reason to believe, at any time, that dangerous conditions are existing or that the law is not being complied with, they may request the director to have an immediate investigation made.
(c) Mine inspectors shall devote their full-time and undivided attention to the performance of their duties, and they shall examine all of the mines in their respective districts at least four times annually, and as often, in addition thereto, as the director may direct, or the necessities of the case or the condition of the mine or mines may require, with no advance notice of inspection provided to any person, and they shall make a personal examination of each working face and all entrances to abandoned parts of the mine where gas is known to liberate, for the purpose of determining whether an imminent danger, referred to in section fifteen of this article, exists in any such the mine, or whether any provision of article two of this chapter is being violated or has been violated within the past forty-eight hours in any such the mine. No other person shall, with the intent of undermining the integrity of an unannounced mine inspection, provide advance notice of any inspection or of an inspector’s presence at a mine to any person at that mine. Any person who, with the requisite intent, knowingly causes or conspires to provide advance notice of any inspection or of an inspector’s presence at a mine is guilty of a felony and, upon conviction thereof, shall be fined not more than $15,000 or imprisoned in a state correctional facility not less than one year and not more than five years, or both fined and imprisoned.
(d) In addition to the other duties imposed by this article and article two of this chapter, it is the duty of each inspector to note each violation he or she finds and issue a finding, order, or notice, as appropriate for each violation so noted. During the investigation of any accident, any violation may be noted whether or not the inspector actually observes the violation and whether or not the violation exists at the time the inspector notes the violation, so long as the inspector has clear and convincing evidence the violation has occurred or is occurring.
(e) On or after July 1, 2012, an inspector shall require the operator or other employer to investigate all complaints received by the Office of Miners’ Health, Safety and Training involving a certified person’s substance abuse or alcohol related impairment at a mine. Within thirty days following notification by the Office of Miners’ Health, Safety and Training to the operator or other employer of the complaint, the operator or other employer shall file with the Director a summary of its investigation into the alleged substance abuse or alcohol related impairment of a certified person.
(f) The mine inspector shall visit the scene of each fatal accident occurring in any mine within his or her district and shall make an examination into the particular facts of such the accident; make a report to the director, setting forth the results of such the examination, including the condition of the mine and the cause or causes of such the fatal accident, if known, and all such the reports shall be made available to the interested parties, upon written requests.
(g) At the commencement of any inspection of a coal mine by an authorized representative of the director, the authorized representative of the miners at the mine at the time of such the inspection shall be given an opportunity to accompany the authorized representative of the director on such the inspection.
§22A-1-21. Penalties.
(a) (1) Any operator of a coal mine in which a violation occurs of any health or safety rule occurs 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 $3,000 $5,000, for each violation, unless the director determines that it is appropriate to impose a special assessment for said the violation, pursuant to the provisions of subdivision (2), subsection (b) of this section. 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.
(2) Revisions to the assessment of civil penalties shall be proposed as legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(3) 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 (4) of this subsection which shall not be more than $250 for each occurrence of the violation.
(4) A civil penalty under subdivision (1) or (2) of subsection (a) of this section or subdivision (1) or (2) of subsection (b) of this section 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.
(5) 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 the order sought to be enforced was issued. The court has jurisdiction to enter a judgment enforcing, modifying and enforcing as 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) (1) 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 (5), subsection (a) of this section of not more than $5,000 and for a second or subsequent violation assessed a civil penalty of not more than $10,000, unless the director determines that it is appropriate to impose a special assessment for said the violation, pursuant to the provisions of subdivision (2) of this subsection.
(2) In lieu of imposing a civil penalty pursuant to the provisions of subsection (a) of this section or subdivision (1) of this subsection, the director may impose a special assessment if an operator violates a health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter and the violation is of serious nature and involves one or more of the following by the operator:
(A) Violations involving fatalities and serious injuries;
(B) Failure or refusal to comply with any order issued under section fifteen of this article;
(C) Operation of a mine in the face of a closure order;
(D) Violations involving an imminent danger;
(E) Violations involving an extraordinarily high degree of negligence or gravity or other unique aggravating circumstances; or
(F) A discrimination violation under section twenty-two of this article.
In situations in which the director determines that there are factors present which would make it appropriate to impose a special assessment, the director shall assess a civil penalty of at least $5,000 and not more than $10,000.
(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 $5,000 $10,000 or imprisoned confined in the jail not more than six months one year, or both fined and imprisoned confined. 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 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 confinement that may be imposed upon a person under subsection (d) of this section.
(f) Any person who willfully violates any safety standard pursuant to this chapter or a rule promulgated thereunder that causes a fatality or who willfully orders or carries out such violation that causes a fatality is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or confined in a state correctional facility not less than one year and not more than five years, or both fined and imprisoned.
(f) (g) There is continued in the Treasury of the State of West Virginia a Special Health, Safety and Training Fund. All civil penalty assessments collected under this section 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.
§22A-1-40. Reporting violations, accident investigations; witness interviews.
(a) To the extent permitted by law, any person meeting with, or providing a statement to, the director may request to do so on a confidential basis without the consent, presence, involvement or knowledge of any third party. Upon such a request, the director shall keep the identity of any individual providing such a statement and the statement itself confidential, to the extent permitted by law, and the statement shall be exempt from disclosure under article one, chapter twenty-nine-b of this code. Nothing in this section precludes a person from being represented when speaking with the director. Further, nothing in this section precludes a person under subpoena or who is voluntarily speaking with the director from authorizing any other person from participation in such meeting or statement.
(b) If any miner is entrapped, fatally injured or otherwise unable, as the result of an accident, to designate a representative to observe witness interviews and investigatory hearings conducted in an accident investigation, the miner’s closest relative may designate one representative who may, subject to subsection (a) of this section, attend witness interviews and investigatory hearings regarding the accident for the sole purpose of observing such interviews and hearings and conveying information to the accident victim’s family: Provided, That the right of a designated representative to observe witness interviews and investigatory hearings pursuant to this subsection shall be subject to subsection (a) of this section and shall not extend to interviews or investigatory hearings of a criminal nature conducted by state or federal inspectors or other state or federal law enforcement officers. No more than five representatives designated pursuant to this section may attend witness interviews and investigatory hearings for the purpose of observing such interviews and hearings and conveying information to accident victims’ families.
(c) The director shall, in consultation with the Board of Coal Mine Health and Safety, develop a list of persons skilled in the fields of grief and crisis management, communications and family support. Following any mining accident involving entrapped miners or fatal injuries, the director shall promptly provide the list of such individuals to the families of the accident victim or victims. The individuals contained on the list developed by the Director shall be available as a resource to families of accident victims who seek their assistance. The list shall also contain a reference to this code section and a statement that the family has the right to designate a representative of their choosing regardless of whether that person is named on the list.
ARTICLE 1A. OFFICE OF MINERS’ HEALTH, SAFETY AND TRAINING; ADMINISTRATION; SUBSTANCE ABUSE.
§22A-1A-1. Substance abuse screening; minimum requirements; standards and procedures for screening.
(a) Every employer of certified persons, as defined in section two, article one of this chapter, shall implement a substance abuse screening policy and program that shall, at a minimum, include:
(1) A preemployment, ten-panel urine test for the following and any other substances as set out in rules adopted by the Office of Miners’ Health, Safety and Training:
(A) Amphetamines,
(B) Cannabinoids/THC,
(C) Cocaine,
(D) Opiates,
(E) Phencyclidine (PCP),
(F) Benzodiazepines,
(G) Propoxyphene,
(H) Methadone,
(I) Barbiturates, and
(J) Synthetic narcotics.
Split samples shall be collected by providers who are certified as complying with standards and procedures set out in the United States Department of Transportation’s rule, 49 CFR Part 40, which may be amended from time to time by legislative rule of the Office of Miners’ Health, Safety and Training. Collected samples shall be tested by laboratories certified by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA) for collection and testing. Notwithstanding the provisions of this subdivision, the mine operator may implement a more stringent substance abuse screening policy and program;
(2) A random substance abuse testing program covering the substances referenced in subdivision (1) of this subsection. “Random testing” means that each person subject to testing has a statistically equal chance of being selected for testing at random and at unscheduled times. The selection of persons for random testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with the persons’ social security numbers, payroll identification numbers, or other comparable identifying numbers; and
(3) Review of the substance abuse screening program with all persons required to be tested at the time of employment, upon a change in the program and annually thereafter.
(b) For purposes of this subsection, preemployment testing shall be required upon hiring by a new employer, rehiring by a former employer following a termination of the employer/employee relationship, or transferring to a West Virginia mine from an employer’s out-of-state mine to the extent that any substance abuse test required by the employer in the other jurisdiction does not comply with the minimum standards for substance abuse testing required by this article. Furthermore, the provisions of this section apply to all employers that employ certified persons who work in mines, regardless of whether that employer is an operator, contractor, subcontractor or otherwise.
(c) The employer or his or her agent shall notify the director at least quarterly, on a form prescribed by the director, of the number of pre-employment substance abuse screening tests administered during the prior calendar quarter and the number of positive test results associated with the substance abuse screening tests administered.
(d) The employer or his or her agent shall notify the director, on a form prescribed by the director, within seven days following completion of an arbitration conducted pursuant to a collective bargaining agreement applicable to the certified person, if any, of discharging a certified person for violation of the employer’s substance abuse screening policy and program. The notification shall be accompanied by a record of the test showing positive results or other violation. Notice shall result in the immediate temporary suspension of all certificates held by the certified person who failed the screening, pending a hearing before the board of appeals pursuant to section two of this article.
(e) Suspension or revocation of a certified person’s certificate as a miner or other miner specialty in another jurisdiction by the applicable regulatory or licensing authority for substance abuse-related matters shall result in the director immediately and temporarily suspending the certified person’s West Virginia certificate until such time as the certified person’s certification is reinstated in the other jurisdiction.
(f) The provisions of this article shall not be construed to preclude an employer from developing or maintaining a drug and alcohol abuse policy, testing program or substance abuse program that exceeds the minimum requirements set forth in this section. The provisions of this article shall also not be construed to require an employer to alter, amend, revise or otherwise change, in any respect, a previously established substance abuse screening policy and program that meets or exceeds the minimum requirements set forth in this section. The provisions of this article shall require an employer to subject its employees who as part of their employment are regularly present at a mine and who are employed in a safety-sensitive position to preemployment and random substance abuse tests: Provided, That each employer shall retain the discretion to establish the parameters of its substance abuse screening policy and program so long as it meets the minimum requirements of this article. For purposes of this section, a “safety-sensitive position” means an employment position where the employee’s job responsibilities include duties and activities that involve the personal safety of the employee or others working at a mine.
§22A-1A-2. Board of Appeals hearing procedures.
(a) Any hearing conducted after the temporary suspension of a certified person’s certificate pursuant to this article, shall be conducted within sixty days of the temporary suspension. The Board of Appeals shall make every effort to hold the hearing within forty days of the temporary suspension.
(b) All hearings of the Board of Appeals pursuant to this section shall be conducted in accordance with the provisions of subsection (c), section thirty-one, article one of this chapter. The Board of Appeals may suspend the certificate or certificates of a certified person for violation of this article or for any other violation of this chapter pertaining to substance abuse. The Board of Appeals may impose further disciplinary actions for repeat violations. The director shall have the authority to propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code to establish the disciplinary actions referenced in this section following the receipt of recommendations from the Board of Coal Mine Health and Safety following completion of the study required pursuant to section fourteen, article six of this chapter. The legislative rules authorized by this subsection shall not, however, include any provisions requiring an employer to take or refrain from taking any specific personnel action or mandating any employer to establish or maintain an employer-funded substance abuse rehabilitation program.
(c) No person whose certification is suspended or revoked under this section may perform any duties under any other certification issued under this chapter, during the period of the suspension imposed by the Board of Appeals.
(d) Any party adversely affected by a final order or decision issued by the Board of Appeals hereunder is entitled to judicial review thereof pursuant to section four, article five, chapter twenty-nine-a of this code.
§22A-1A-3. Disclosure of records exempt; exceptions.
Records of substance abuse and alcohol screening tests, written or otherwise, received by the Office of Miners’ Health, Safety and Training, its employees, agents and representatives are confidential communications and are exempt from disclosure under article one, chapter twenty-nine-b of the code, except as follows:
(a) Where release of the information is authorized solely pursuant to a written consent form signed voluntarily by the person tested. The consent form shall contain the following:
(1) The name of the person who is authorized to obtain the information;
(2) The purpose of the disclosure;
(3) The precise information to be disclosed;
(4) The duration of the consent; and
(5) The signature of the person authorizing the release of the information;
(b) Where the release of the information is compelled by the Board of Appeals or a court of competent jurisdiction;
(c) Where the release of the information is relevant to a legal claim asserted by the person tested;
(d) Where the information is used by the entity conducting the substance abuse or alcohol screening test in defense of a civil or administrative action related to the testing or results, or to consult with its legal counsel; or
(e) Where release of the information is deemed appropriate by the Board of Appeals or a court of competent jurisdiction in a disciplinary proceeding.
§22A-1A-4. Effective date.
The provisions of this article are effective beginning January 1, 2013.
ARTICLE 2. UNDERGROUND MINES.
§22A-2-2. Submittal of detailed ventilation plan to director.
(a) A mine operator shall submit a detailed ventilation plan and any addendums to the director for review and comment. The mine operator shall review the plan with the director and address concerns to the extent practicable. The operator shall deliver to the miners' representative employed by the operator at the mine, if any, a copy of the operator's proposed annual ventilation plan at least ten days prior to the date of submission. The miners' representative, if any, shall be afforded the opportunity to submit written comments to the operator prior to such submission; in addition the miners' representative, if any, may submit written comments to the director. The director shall submit any concern that is not addressed to the United States Department of Labor - Mine Safety and Health Administration [MSHA] through comments to the plan. The mine operator shall provide a copy of the plan to the director ten days prior to the submittal of the plan to MSHA.
(b) The operator shall give the director a copy of the MSHA-approved plan and any addendums as soon as the operator receives the approval.
(c) In the event of an unforeseen situation requiring immediate action on a plan revision, the operator shall submit the proposed revision to the director and the miners’ representative, if any, employed by the operator at the mine when the proposed revision is submitted to MSHA. The director shall work with the operator to review and comment on the proposed plan revision to MSHA as quickly as possible.
(d) Upon approval by MSHA, the plan is enforceable by the director. The approved plan and all revisions and addendums thereto shall be posted on the mine bulletin board and made available for inspection by the miners at that mine for the period of time that they are in effect.
§22A-2-12. Instruction of employees and supervision of apprentices; annual examination of persons using approved methane detecting devices; records of examination; maintenance of methane detectors, etc.
(a) The Office of Miners' Health, Safety and Training shall prescribe and establish a course of instruction in mine safety and particularly in dangers incident to such employment in mines and in mining laws and rules, which course of instruction shall be successfully completed within twelve weeks after any person is first employed as a miner. It is further the duty and responsibility of the Office of Miners' Health, Safety and Training to see that such the course is given to all persons as above provided after their first being employed in any mine in this state. In addition to other enforcement actions available to the director, upon a finding by the director of the existence of a pattern of conduct creating a hazardous condition at a mine, the director shall notify the Board of Miners’ Training, Education and Certification, which shall cause additional training to occur at the mine addressing such safety issue or issues identified by the director, pursuant to article seven of this chapter.
(b) It is the duty of the mine foreman or the assistant mine foreman of every coal mine in this state to see that every person employed to work in such the mine is, before beginning work therein, instructed in the particular danger incident to his or her work in such the mine, and furnished a copy of the mining laws and rules of such the mine. It is the duty of every mine operator who employs apprentices, as that term is used in sections three and four, article eight of this chapter to ensure that the apprentices are effectively supervised with regard to safety practices and to instruct apprentices in safe mining practices. Every apprentice shall work under the direction of the mine foreman or his or her assistant mine foreman and they are responsible for his or her safety. The mine foreman or assistant mine foreman may delegate the supervision of an apprentice to an experienced miner, but the foreman and his or her assistant mine foreman remain responsible for the apprentice. During the first ninety one hundred twenty days of employment in a mine, the apprentice shall work within sight and sound of the mine foreman, assistant mine foreman, or an experienced miner, and in such a location that the mine foreman, assistant mine foreman or experienced miner can effectively respond to cries for help of the apprentice. Such The location shall be on the same side of any belt, conveyor or mining equipment.
(c) Persons whose duties require them to use a flame safety lamp approved methane detecting device or other approved methane detectors shall be examined at least annually as to their competence by a qualified official from the Office of Miners' Health, Safety and Training and a record of such the examination shall be kept by the operator and the office. Flame safety lamps Approved methane detecting devices and other approved methane detectors shall be given proper maintenance and shall be tested before each working shift. Each operator shall provide for the proper maintenance and care of the permissible flame safety lamp approved methane detecting device or any other approved device for detecting methane and oxygen deficiency by a person trained in such the maintenance, and, before each shift, care shall be taken to ensure that such lamp the approved methane detecting device or other device is in a permissible condition and maintained according to manufacturer’s specifications.
§22A-2-16. Examinations of reports of fire bosses.
The mine foreman shall, also each day, read carefully and countersign with ink or indelible pencil all reports entered in the record book of the fire bosses. and he The mine foreman shall supervise the fire boss or fire bosses, except as hereinafter provided in section twenty-one of this article. No less frequently than bi-weekly, the superintendent or, if there is no superintendent, the senior person at the mine shall obtain complete copies of the books of the fire bosses, and acknowledge that he or she has reviewed such copies and acted accordingly. This acknowledgment shall be made by signing a book prescribed by the director for that purpose.
§22A-2-20. Preparation of danger signal by fire boss or certified person acting as such prior to examination; report; records open for inspection.
(a) It shall be is the duty of the fire boss, or a certified person acting as such, to prepare a danger signal (a separate signal for each shift) with red color at the mine entrance at the beginning of his or her shift or prior to his or her entering the mine to make his or her examination and, except for those persons already on assigned duty, no person except the mine owner, operator or agent, and only then in the case of necessity, shall pass beyond this danger signal until the mine has been examined by the fire boss or other certified person and the mine or certain parts thereof reported by him or her to be safe. When reported by him or her to be safe, the danger sign or color thereof shall be changed to indicate that the mine is safe in order that employees going on shift may begin work. Each person designated to make such the fire boss examinations shall be assigned a definite underground area of such the mine, and, in making his or her examination shall examine all active working places in the assigned area and make tests with an approved device for accumulations of methane and oxygen deficiency; examine seals and doors; examine and test the roof, face and ribs in the working places and on active roadways and travelways, approaches to abandoned workings, and accessible falls in active sections and areas where any person is scheduled to work or travel underground. He or she shall place his or her initials and the date at or near the face of each place he or she examines. Should he or she find a condition which he or she considers dangerous to persons entering such the areas, he or she shall place a conspicuous danger sign at all entrances to such the place or places. Only persons authorized by the mine management may enter such the places while the sign is posted and only for the purpose of eliminating the dangerous condition. Upon completing his or her examination he or she shall report by suitable communication system or in person the results of this examination to a certified person designated by mine management to receive and record such the report, at a designated station on the surface of the premises of the mine or underground, before other persons enter the mine to work in such coal-producing shifts. He or she shall also record the results of his or her examination with ink or indelible pencil in a book prescribed by the director, kept for such the purpose at a place on the surface of the mine designated by mine management. All records of daily and weekly reports, as prescribed herein, shall be open for inspection by interested persons.
(b) Supplemental examination. -- When it becomes necessary to have workers enter areas of the mine not covered during the preshift examination, a supplemental examination shall be performed by a fire boss or certified person acting as such within three hours before any person enters the area. The fire boss or certified person acting as such shall examine the area for hazardous conditions, determine if air is traveling in its proper direction and test for oxygen deficiency and methane.
(c) Each examined area shall be certified by date, time and the initials of the examiner.
(d) The results of the examination shall be recorded with ink or indelible pencil by the examiner in the book referenced in subsection (a) of this section before he or she leaves the mine on that shift.
§22A-2-24. Control of coal dust; rock dusting.
(a) In all mines, dangerous accumulations of fine, dry coal and coal dust shall be removed from the mine, and all dry and dusty operating sections and haulageways and conveyors and back entries shall be rock dusted or dust allayed by such other methods as may be approved by the director.
(b) All mines or locations in mines that are too wet or too high in incombustible content for a coal dust explosion to initiate or propagate are not required to be rock dusted during the time any of these conditions prevail. Coal dust and other dust in suspension in unusual quantities shall be allayed by sprinkling or other dust allaying devices.
(c) In all dry and dusty mines or sections thereof, rock dust shall be applied and maintained upon the roof, floor and sides of all operating sections, haulageways and parallel entries connected thereto by open crosscuts. Back entries shall be rock dusted. Rock dust shall be so applied to include the last open crosscut of rooms and entries, and to within forty feet of faces. Rock dust shall be maintained in such a quantity that the incombustible content of the mine dust that could initiate or propagate an explosion shall not be less than sixty-five eighty percent. but the incombustible content in return entries shall not be less than eighty percent. The incombustible content of mine dust in return entries shall also be equal to or greater than eighty percent.
(d) Rock dust shall not contain more than five percent by volume of quartz or free silica particles and shall be pulverized so that one hundred percent will pass through a twenty mesh screen and seventy percent or more will pass through a two hundred mesh screen.
(e) If requested by the director, an operator shall provide records establishing the quantity of bulk and bag rock dust purchased for a period not to exceed the immediately preceding six months.
§22A-2-43. Actions to detect and respond to excess methane.
The following actions are required to detect and respond to excess methane:
(a) Hand-held testing required. -- In any mine, no electrical equipment or permissible diesel powered equipment may be brought in by the last open crosscut until a qualified person tests for methane. If one percent or more methane is present, the equipment may not be taken into the area until the methane concentration is reduced to less than one percent. Thereafter, subsequent methane examinations shall be made at least every twenty minutes while any electrical or diesel powered equipment is present and energized.
(b) Location of tests. –- Tests for methane concentrations under this section shall be made at least twelve inches from the roof, face, ribs and floor.
(c) Working places and intake air courses. --
(1) When one percent or more methane is present in a working place or an intake air course, including an air course in which a belt conveyor is located or in an area where mechanized mining equipment is being installed or removed:
(A) Except intrinsically safe atmospheric monitoring systems (AMS), electrically powered equipment in the affected area shall be de-energized and other mechanized equipment shall be shut off.
(B) Changes or adjustments shall be made at once to the ventilation system to reduce the concentration of methane to less than one percent.
(C) No other work shall be permitted in the affected area until the methane concentration is less than one percent.
(2) When one and five-tenths percent or more methane is present in a working place or an intake air course, including an air course in which a belt conveyor is located or in an area where mechanized mining equipment is being installed or removed:
(A) Except for the mine foreman, assistant mine foreman, or individuals authorized by the mine foreman or assistant mine foreman, all individuals shall be withdrawn from the affected area. If a federal or state mine inspector is present in the area of the mine where one and five-tenths percent or more of methane is detected, the federal or state mine inspector and the miners’ representative, if any, may remain in the area with the mine foreman, assistant mine foreman or other individuals authorized by the mine foreman or assistant mine foreman.
(B) Except for intrinsically safe AMS, electrically powered equipment in the affected area shall be disconnected at the power source.
(d) Return air split.--
(1) When one percent or more methane is present in a return air split between the last working place on a working section and where that split of air meets another split of air or the location at which the split is used to ventilate seals or worked-out areas, changes or adjustments shall be made at once to the ventilation system to reduce the concentration of methane in the return air to less than one percent.
(2) When one and five-tenths percent or more methane is present in a return air split between the last working place on a working section and where that split of air meets another split of air or the location where the split is used to ventilate seals or worked-out areas, except for the mine foreman, assistant mine foreman or individuals authorized by the mine or assistant mine foreman, all individuals shall be withdrawn from the affected area. If a federal or state mine inspector is present in the area of the mine where one and five-tenths percent or more of methane is detected, the federal or state mine inspector and the miners’ representative, if any, may remain in the area with the mine foreman, assistant mine foreman or other individuals authorized by the mine foreman or assistant mine foreman.
(3) Other than intrinsically safe AMS, equipment in the affected area shall be de-energized, electric power shall be disconnected at the power source and other mechanized equipment shall be shut off.
(4) No other work shall be permitted in the affected area until the methane concentration in the return air is less than one percent.
(e) Return air split alternative. --
(1) The provisions of this paragraph may apply if:
(A) The quantity of air in the split ventilating the active workings is at least twenty seven thousand cubic feet per minute in the last open crosscut or the quantity specified in the approved ventilation plan, whichever is greater.
(B) The methane content of the air in the split is continuously monitored during mining operations by an AMS that gives a visual and audible signal on the working section when the methane in the return air reaches one and five-tenths percent and the methane content is monitored as specified in the approved ventilation plan.
(C) Rock dust is continuously applied with a mechanical duster to the return air course during coal production at a location in the air course immediately outby the most inby monitoring point.
(2) When one and five-tenths percent or more methane is present in a return air split between a point in the return opposite the section loading point and where that split of air meets another split of air or where the split of air is used to ventilate seals or worked-out areas:
(A) Changes or adjustments shall be made at once to the ventilation system to reduce the concentration of methane in the return air below one and five-tenths percent.
(B) Except for the mine foreman, assistant mine foreman or individuals authorized by the mine foreman or assistant mine foreman, all individuals shall be withdrawn from the affected area. If a federal or state mine inspector is present in the area of the mine where one and five-tenths percent or more of methane is detected, the federal or state mine inspector and the miners’ representative, if any, may remain in the area with the mine foreman, assistant mine foreman or other individuals authorized by the mine foreman or assistant mine foreman.
(C) Except for intrinsically safe AMS, equipment in the affected area shall be de-energized, electric power shall be disconnected at the power source and other mechanized equipment shall be shut off.
(D) No other work shall be permitted in the affected area until the methane concentration in the return air is less than one and five-tenths percent.
(f) Bleeders and other return air courses. --
The concentration of methane in a bleeder split of air immediately before the air in the split joins another split of air, or in a return air course other than as described in subsections (d) and (e) of this section, shall not exceed two percent.
(g) Machine mounted methane monitors. --
(1) Approved methane monitors shall be installed and maintained on all face cutting machines, continuous miners, longwall face equipment and other mechanized equipment used to extract coal or load coal within the working place.
(2) The sensing device for methane monitors on longwall shearing machines shall be installed at the return air end of the longwall face. An additional sensing device also shall be installed on the longwall shearing machine, downwind and as close to the cutting head as practicable. An alternative location or locations for the sensing device required on the longwall shearing machine may be approved in the ventilation plan.
(3) The sensing devices of methane monitors shall be installed as close to the working face as practicable.
(4) Methane monitors shall be maintained in permissible and proper operating condition and shall be calibrated with a known air-methane mixture at least once every fifteen days and a record of the calibration shall be recorded with ink or indelible pencil by the person performing the calibration in a book prescribed by the director and maintained on the surface. Calibration records shall be retained for inspection for at least one year from the date of the test. To assure that methane monitors are properly maintained and calibrated, the operator shall use persons properly trained in the maintenance, calibration, and permissibility of methane monitors to calibrate and maintain the devices.
(h) Automatic de-energization of extraction apparatus. --
When the methane concentration at any machine-mounted methane monitor reaches one percent, the monitor shall give a warning signal. The warning signal device of the methane monitor shall be visible to a person operating the equipment on which the monitor is mounted. The methane monitor shall automatically de-energize the extraction apparatus on the machine on which it is mounted, but not the machine as a whole to facilitate proper mining procedures, when:
(1) The methane concentration at any machine-mounted methane monitor reaches one and twenty-five one hundredths percent for a sustained period; or
(2) The monitor is not operating properly.
The machine’s extraction apparatus may not again be started in that place until the methane concentration measured by the methane monitor is less than one percent.
(i) Compliance schedule for machine refit. --
Within one hundred twenty days of the effective date of the amendments to this section, the Board of Coal Mine Health and Safety shall promulgate legislative rules pursuant to article three, chapter twenty-nine-a of this code establishing calibration procedures, defining the term “sustained period” for purposes of implementing this section, and establishing a compliance schedule setting forth the time frame in which all new and existing face cutting machines, continuous miners, longwall face equipment and other mechanized equipment used to extract coal or load coal within the working place shall be refitted with methane monitors. Enforcement of subsections (g) and (h) of this section shall not commence until after the time frame is established by rule.
§22A-2-43a. Operation of cutting and mining machines; repair and maintenance of same.
(a) Qualified person to operate cutting machine. -- No person shall be placed in charge of a coal-cutting machine in any mine who is not a qualified person, capable of determining the safety of the roof and sides of the working places and of detecting the presence of explosive gas, unless they are accompanied by a certified or qualified person who has passed such an examination.
(b) Operation of mining machines. -- Machine operators and helpers shall use care while operating mining machines. They shall examine the roof of the working place to see that it is safe before starting to operate the machine. They shall not move the machine while the cutter chain is in motion. Additionally, no person shall operate the cutterhead on any continuous miner while the machine is moving from place to place underground: Provided, That a cutterhead may be operated during clean up or when the machine is extracting coal.
(c) Repair and maintenance of mining machines. -- (1) Repairs or maintenance shall not be performed on mining machines until the power is off and locked and tagged, if required by law, and the machinery is blocked against motion, except where machinery motion is necessary to make adjustments. For purposes of this subsection, the following terms shall have the following meanings:
(A) “Maintenance” means the labor of keeping machinery in good working order and includes cleaning, clearing jammed material or conducting examinations on or in close proximity to machinery; and
(B) “Repair” means to fix, mend, or restore to good working order.
(d) Methods to comply with the standard to prevent inadvertent or unexpected motion include:
(A) Opening the circuit breaker for the affected machinery, provided no energized parts or conductors are exposed, and placing the run selector switch for startup of the machinery in the “off” position. On longwall machinery, this would include placing the lockout switch in the lockout position in the area were the repair or maintenance is being performed. A qualified electrician is required to de-energize a circuit breaker if there are exposed energized parts or conductors; or
(B) Opening the circuit breaker at the power center that supplies power for the affected machinery and disengaging the power cable coupler that supplies power to the machinery; or
(C) Opening a manual visible disconnect switch, either within the circuit or onboard the machinery, and securing the switch against reenergization, as required by law. A control circuit start-stop switch does not constitute a manual disconnect; or
(D) In cases such as steeply inclined belt conveyors and suspended loads, when removing the power alone will not ensure against unintentional or inadvertent movement, the machinery shall be physically blocked, in addition to removing the power by one of the three methods described above. Physical blocking may be achieved by the use of such devices as bars, chocks or clamps.
§22A-2-55. Protective equipment and clothing.
(a) Welders and helpers shall use proper shields or goggles to protect their eyes. All employees shall have approved goggles or shields and use the same where there is a hazard from flying particles or other eye hazards.
(b) Employees engaged in haulage operations and all other persons employed around moving equipment on the surface and underground shall wear snug-fitting clothing.
(c) Protective gloves shall be worn when material which may injure hands is handled, but gloves with gauntleted cuffs shall not be worn around moving equipment.
(d) Safety hats and safety-toed shoes shall be worn by all persons while in or around a mine: Provided, That metatarsal guards are not required to be worn by persons when working in those areas of underground mine workings which average less than forty-eight inches in height as measured from the floor to the roof of the underground mine workings.
(e) Approved eye protection shall be worn by all persons while being transported in open-type man trips.
(f) (1) A self-contained self-rescue device approved by the director shall be worn by each person underground or kept within his or her immediate reach and the device shall be provided by the operator. The self-contained self-rescue device shall be adequate to protect a miner for one hour or longer. Each operator shall train each miner in the use of such the device and refresher training courses for all underground employees shall be held during each calendar year once each quarter. Quarters shall be based on a calendar year.
(2) In addition to the requirements of subdivision (1) of this subsection, the operator shall also provide caches of additional self-contained self-rescue devices throughout the mine in accordance with a plan approved by the director. Each additional self-contained self-rescue device shall be adequate to protect a miner for one hour or longer. The total number of additional self-contained self-rescue devices, the total number of storage caches and the placement of each cache throughout the mine shall be established by rule pursuant to subsection (i) of this section. A luminescent sign with the words "SELF-CONTAINED SELF-RESCUER" or "SELF-CONTAINED SELF-RESCUERS" shall be conspicuously posted at each cache and luminescent direction signs shall be posted leading to each cache. Lifeline cords or other similar device, with reflective material at twenty-five foot intervals, shall be attached to each cache from the last open crosscut to the surface. The operator shall conduct weekly inspections of each cache and each lifeline cord or other similar device to ensure operability.
(3) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any self-contained self-rescue device or lifeline cord from the mine or mine site with the intent to permanently deprive the operator of the device or lifeline cord or knowingly tampers with or attempts to tamper with such the device or lifeline cord shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than $10,000 nor more than $100,000, or both.
(g) (1) A wireless emergency communication device approved by the director and provided by the operator shall be worn by each person underground. The wireless emergency communication device shall, at a minimum, be capable of receiving emergency communications from the surface at any location throughout the mine. Each operator shall train each miner in the use of the device and provide refresher training courses for all underground employees during each calendar year. The operator shall install in or around the mine any and all equipment necessary to transmit emergency communications from the surface to each wireless emergency communication device at any location throughout the mine.
(2) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any wireless emergency communication device or related equipment, from the mine or mine site with the intent to permanently deprive the operator of the device or equipment or knowingly tampers with or attempts to tamper with the device or equipment shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than $10,000 nor more than $100,000, or both.
(h) (1) A wireless tracking device approved by the director and provided by the operator shall be worn by each person underground. In the event of an accident or other emergency, the tracking device shall, at a minimum, be capable of providing real-time monitoring of the physical location of each person underground: Provided, That no person shall discharge or discriminate against any miner based on information gathered by a wireless tracking device during nonemergency monitoring. Each operator shall train each miner in the use of the device and provide refresher training courses for all underground employees during each calendar year. The operator shall install in or around the mine all equipment necessary to provide real-time emergency monitoring of the physical location of each person underground.
(2) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any wireless tracking device or related equipment, approved by the director, from a mine or mine site with the intent to permanently deprive the operator of the device or equipment or knowingly tampers with or attempts to tamper with the device or equipment shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than $10,000 nor more than $100,000, or both.
(i) The director may promulgate emergency and legislative rules to implement and enforce this section pursuant to the provisions of article three, chapter twenty-nine-a of this code.
§22A-2-66. Accident; notice; investigation by Office of Miners' Health, Safety and Training.
(a) For the purposes of this section, the term "accident" means:
(1) The death of an individual at a mine;
(2) An injury to an individual at a mine which has a reasonable potential to cause death;
(3) The entrapment of an individual;
(4) The unplanned inundation of a mine by a liquid or gas;
(5) The unplanned ignition or explosion of gas or dust;
(6) The unplanned ignition or explosion of a blasting agent or an explosive;
(7) An unplanned fire in or about a mine not extinguished within five minutes of ignition;
(8) An unplanned roof fall at or above the anchorage zone in active workings where roof bolts are in use or an unplanned roof or rib fall in active workings that impairs ventilation or impedes passage;
(9) A coal or rock outburst that causes withdrawal of miners or which disrupts regular mining activity for more than one hour;
(10) An unstable condition at an impoundment, refuse pile or culm bank which requires emergency action in order to prevent failure, or which causes individuals to evacuate an area, or the failure of an impoundment, refuse pile or culm bank;
(11) Damage to hoisting equipment in a shaft or slope which endangers an individual or which interferes with use of the equipment for more than thirty minutes; and
(12) An event at a mine which causes death or bodily injury to an individual not at the mine at the time the event occurs.
(b) Whenever any accident occurs in or about any coal mine or the machinery connected therewith, it is the duty of the operator or the mine foreman in charge of the mine to give notice, within fifteen minutes of ascertaining the occurrence of an accident, to the Mine and Industrial Accident Emergency Operations Center at the statewide telephone number established by the Director of the Division of Homeland Security and Emergency Management pursuant to the provisions of article five-b, chapter fifteen of this code stating the particulars of the accident: Provided, That the operator or the mine foreman in charge of the mine may comply with this notice requirement by immediately providing notice to the appropriate local organization for emergency services as defined in section eight, article five of said chapter, or the appropriate local emergency telephone system operator as defined in article six, chapter twenty-four of this code: Provided, however, That if, immediately upon ascertaining the occurrence of an accident, the operator or the mine foreman in charge of the mine provides notice to the local organization for emergency services as defined in section eight, article five, chapter fifteen of this code, or the appropriate local emergency telephone system operator as defined in article six, chapter twenty-four of this code, then, in order to comply with this subsection, the operator or mine foreman in charge of the mine shall also give notice to the Mine and Industrial Accident Emergency Operations Center at the statewide number identified in this subsection within fifteen minutes of completing the telephone call to the local organization for emergency services or the appropriate local emergency telephone system operator, as applicable: Provided, however further, That nothing in this subsection shall be construed to relieve the operator from any reporting or notification requirement under federal law.
(c) The Director of the Office of Miners' Health, Safety and Training shall impose, pursuant to rules authorized in this section, a civil administrative penalty of $100,000 on the operator if it is determined that the operator or the mine foremen in charge of the mine failed to give immediate notice as required in this section: Provided, That the director may waive imposition of the civil administrative penalty at any time if he or she finds that the failure to give immediate notice was caused by circumstances wholly outside the control of the operator: Provided, however, That the assessment of the civil administrative penalty set forth in this subsection may be appealed to the Board of Appeals, and the Board of Appeals may, by unanimous vote, reduce the amount of the civil administrative penalty upon a finding of mitigating circumstances warranting the imposition of a lesser amount.
(d) If anyone is killed fatally injured, the inspector shall immediately go to the scene of the accident and make recommendations and render assistance as he or she may deem necessary for the future safety of the men and investigate the cause of the explosion or accident and make a record. He or she shall preserve the record with the other records in his or her office. The cost of the investigation records shall be paid by the Office of Miners' Health, Safety and Training. A copy shall be furnished to the operator and other interested parties. To enable him or her to make an investigation, he or she has the power to compel the attendance of witnesses and to administer oaths or affirmations. The director has the right to appear and testify and to offer any testimony that may be relevant to the questions and to cross-examine witnesses.
ARTICLE 6. BOARD OF COAL MINE HEALTH AND SAFETY.
§22A-6-4. Board powers and duties.
(a) The board shall adopt as standard rules the “coal mine health and safety provisions of this chapter”. Such standard rules and any other rules shall be adopted by the board without regard to the provisions of chapter twenty-nine-a of this code. The Board of Coal Mine Health and Safety shall devote its time toward promulgating rules in those areas specifically directed by this chapter and those necessary to prevent fatal accidents and injuries.
(b) The board shall review such standard rules and, when deemed appropriate to improve or enhance coal mine health and safety, revise the same or develop and promulgate new rules dealing with coal mine health and safety.
(c) The board shall develop, promulgate and revise, as may be appropriate, rules as are necessary and proper to effectuate the purposes of article two of this chapter and to prevent the circumvention and evasion thereof, all without regard to the provisions of chapter twenty-nine-a of this code:
(1) Upon consideration of the latest available scientific data in the field, the technical feasibility of standards, and experience gained under this and other safety statutes, such rules may expand protections afforded by this chapter notwithstanding specific language therein, and such rules may deal with subject areas not covered by this chapter to the end of affording the maximum possible protection to the health and safety of miners.
(2) No rules promulgated by the board shall reduce or compromise the level of safety or protection afforded miners below the level of safety or protection afforded by this chapter.
(3) Any miner or representative of any miner, or any coal operator has the power to petition the circuit court of Kanawha County for a determination as to whether any rule promulgated or revised reduces the protection afforded miners below that provided by this chapter, or is otherwise contrary to law: Provided, That any rule properly promulgated by the board pursuant to the terms and conditions of this chapter creates a rebuttable presumption that said rule does not reduce the protection afforded miners below that provided by this chapter.
(4) The director shall cause proposed rules and a notice thereof to be posted as provided in section eighteen, article one of this chapter. The director shall deliver a copy of such proposed rules and accompanying notice to each operator affected. A copy of such proposed rules shall be provided to any individual by the director's request. The notice of proposed rules shall contain a summary in plain language explaining the effect of the proposed rules.
(5) The board shall afford interested persons a period of not less than thirty days after releasing proposed rules to submit written data or comments. The board may, upon the expiration of such period and after consideration of all relevant matters presented, promulgate such rules with such modifications as it may deem appropriate.
(6) On or before the last day of any period fixed for the submission of written data or comments under subdivision (5) of this section, any interested person may file with the board written objections to a proposed rule, stating the grounds therefor and requesting a public hearing on such objections. As soon as practicable after the period for filing such objections has expired, the board shall release a notice specifying the proposed rules to which objections have been filed and a hearing requested.
(7) Promptly after any such notice is released by the board under subdivision (6) of this section, the board shall issue notice of, and hold a public hearing for the purpose of receiving relevant evidence. Within sixty days after completion of the hearings, the board shall make findings of fact which shall be public, and may promulgate such rules with such modifications as it deems appropriate. In the event the board determines that a proposed rule should not be promulgated or should be modified, it shall within a reasonable time publish the reasons for its determination.
(8) All rules promulgated by the board shall be published in the State Register and continue in effect until modified or superseded in accordance with the provisions of this chapter.
(d) To carry out its duties and responsibilities, the board is authorized to employ such personnel, including legal counsel, experts and consultants, as it deems necessary. In addition, the board, within the appropriations provided for by the Legislature, may conduct or contract for research and studies and is entitled to the use of the services, facilities and personnel of any agency, institution, school, college or university of this state.
(e) The director shall within sixty days of a coal mining fatality or fatalities provide the board with all available reports regarding such fatality or fatalities.
The board shall review all reports and any recommended rules submitted by the director, receive any additional information it requests, and may, on its own initiative, investigate the circumstances surrounding a coal mining fatality or fatalities and ascertain the cause or causes of such coal mining fatality or fatalities. In order to investigate a coal mining fatality or fatalities, a majority of the board must vote in favor of commencing an investigation. Within ninety days of the receipt of the Federal Mine Safety and Health Administration's fatal accident report and the director's report and recommended rules, the board shall review and consider the presentation of said report and rules and the results of its own investigation, if any, and, if a majority of all voting board members determines that additional rules can assist in the prevention of the specific type of fatality, the board shall either accept and promulgate the director's recommended rules, amend the director's recommended rules or draft new rules, as are necessary to prevent the recurrence of such fatality. If the board chooses to amend the director's recommended rules or draft its own rules, a vote is required within one hundred twenty days as to whether to promulgate the amended rule or the rule drafted by the board: Provided, That the board may, by majority vote, find that exceptional circumstances exist and the deadline cannot be met: Provided, however, That under no circumstances shall such deadline be extended by more than a total of ninety days. A majority vote of the board is required to promulgate any such rule.
The board shall annually, not later than July 1, review the major causes of coal mining injuries during the previous calendar year, reviewing the causes in detail, and shall promulgate such rules as may be necessary to prevent the recurrence of such injuries.
Further, the board shall, on or before January 10, of each year, submit a report to the Governor, President of the Senate and Speaker of the House, which report shall include, but is not limited to:
(1) The number of fatalities during the previous calendar year, the apparent reason for each fatality as determined by the office of miners' health, safety and training and the action, if any, taken by the board to prevent such fatality;
(2) Any rules promulgated by the board during the last year;
(3) What rules the board intends to promulgate during the current calendar year;
(4) Any problem the board is having in its effort to promulgate rules to enhance health and safety in the mining industry;
(5) Recommendations, if any, for the enactment, repeal or amendment of any statute which would cause the enhancement of health and safety in the mining industry;
(6) Any other information the board deems appropriate;
(7) In addition to the report by the board, as herein contained, each individual member of said board has right to submit a separate report, setting forth any views contrary to the report of the board, and the separate report, if any, shall be appended to the report of the board and be considered a part thereof.
§22A-6-13. Study of ingress and egress to bleeder and gob areas of longwall panels and pillar sections.
The Board of Coal Mine Health and Safety is directed to study the safety of working or traveling in bleeder or gob areas of a longwall panel or pillar section of a mine where only one travelable entry in and out of the area exists. The study shall consider what additional roof control or other measures, if any, should be implemented to ensure that underground miners who work or travel in bleeder or gob areas of a longwall panel or pillar section having only one travelable entry in and out of the areas are at least as safe as miners working in comparable areas with multiple travelable entries in and out of the areas. By December 31, 2012, the board shall report to the Legislature’s Joint Committee on Government and Finance with recommendations regarding implementation of the findings of this study.
§22A-6-14. Study of mandatory substance abuse program.
The Board of Coal Mine Health and Safety is directed to study the mandatory substance abuse screening policy and program requirements of article one-a of this chapter and make recommendations to the director regarding: (a) Establishment of guidelines to be employed by the Board of Appeals when administering disciplinary actions to certified persons pursuant to article one-a of this chapter; (b) requiring certification by the Office of Miners’ Health, Safety and Training of persons who regularly work at mines who are not presently required to obtain certification; and (c) establishment of additional minimum requirements, parameters, methodologies and protocols to be integrated into the substance abuse screening policy and program requirements of article one-a of this chapter. By August 31, 2012, the board shall submit its report to the director. The director is authorized to propose for legislative promulgation, legislative rules pursuant to article three, chapter twenty-nine-a of this code regarding the implementation of the findings of this study. These rules shall be initially promulgated as emergency rules by the director pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of the code by December 31, 2012, and shall include the establishment of certification requirements recommended by the board for persons who regularly work at mines that are not presently required to obtain certification and establishment of guidelines to be employed by the Board of Appeals when administering disciplinary actions to certified persons pursuant to article one-a of this chapter.
ARTICLE 7. BOARD OF MINER TRAINING, EDUCATION AND CERTIFICATION.
§22A-7-5. Board powers and duties.
(a) The board shall establish criteria and standards for a program of education, training and examination to be required of all prospective miners and miners prior to their certification in any of the various miner specialties requiring certification under this article or any other provision of this code. The specialties include, but are not limited to, underground miner, surface miner, apprentice, underground mine foreman-fire boss, assistant underground mine foreman-fire boss, shotfirer, mine electrician and belt examiner. Notwithstanding the provisions of this section, the director may by rule further subdivide the classifications for certification.
(b) The board may require certification in other miner occupational specialties: Provided, That no new specialty may be created by the board unless certification in a new specialty is made desirable by action of the federal government requiring certification in a specialty not enumerated in this code.
(c) The board may establish criteria and standards for a program of preemployment education and training to be required of miners working on the surface at underground mines who are not certified under the provisions of this article or any other provision of this code.
(d) The board shall set minimum standards for a program of continuing education and training of certified persons and other miners on an annual basis: Provided, That the standards shall be consistent with the provisions of section seven of this article. Prior to issuing the standards, the board shall conduct public hearings at which the parties who may be affected by its actions may be heard. The education and training shall be provided in a manner determined by the director to be sufficient to meet the standards established by the board.
(e) The board may, in conjunction with any state, local or federal agency or any other person or institution, provide for the payment of a stipend to prospective miners enrolled in one or more of the programs of miner education, training and certification provided in this article or any other provision of this code.
(f) The board may also, from time to time, conduct any hearings and other oversight activities required to ensure full implementation of programs established by it.
(g) Nothing in this article empowers the board to revoke or suspend any certificate issued by the Director of the Office of Miners' Health, Safety and Training.
(h) The board may, upon its own motion or whenever requested to do so by the director, consider two certificates issued by this state to be of equal value or consider training provided or required by federal agencies to be sufficient to meet training and education requirements set by it, the director, or by the provisions of this code.
(i) As part of the annual training required by this section, the board shall include training of certified persons and other miners, instruction on miners’ rights as they relate to the operation of unsafe equipment as provided in section seventy-one of article two of this chapter, his or her right to withdrawal from unsafe conditions as provided in section seventy-one-a of article two of this chapter and his or her rights under section twenty-two, article one of this chapter.
§22A-7-5a. Study of miner training and education.
The board is directed to conduct a study of the overall program of education, training and examination associated with the various miner specialties requiring certification under this article or any other provision of this code. The study shall identify ways to enhance miner education and training to adequately reflect technological advances in coal mining techniques and best practices used in modern coal mines, and improve supervision of apprentice miners. Furthermore, the board shall place particular emphasis in its study on ways to improve education and training in the areas of proper mine ventilation, methane monitoring and equipment de-energization, fire-boss procedures and overall core mining competencies. By December 31, 2012, the board shall report to the Legislature’s Joint Committee on Government and Finance with recommendations regarding the implementation of the findings of this study.
ARTICLE 12. UNDERGROUND ACCIDENT INVESTIGATIONS.
§22A-12-1. Report on enforcement procedures.
The director shall, by December 31, 2013, report to the Legislature and Governor on the need for revisions in the state’s underground mine safety enforcement procedures. The director shall initiate the study using appropriate academic resources and mining safety organizations to conduct a program review of state enforcement procedures to evaluate what reforms will assure that mining operations follow state mandated safety protocols. The report shall include recommended legislation, rules and policies, consider various options for improving inspections, accountability and equitable and timely administrative procedures that cause remediation of hazardous working conditions.
The bill (Eng. Com. Sub. for H. B. No. 4351), as amended, was then ordered to third reading.
Eng. House Bill No. 4481, Relating to the Comprehensive Behavioral Health Commission.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 42. COMPREHENSIVE BEHAVIORAL HEALTH COMMISSION.
§16-42-3. Comprehensive Behavioral Health Commission.
(a) Effective July 1, 2011, the Comprehensive Behavioral Health Commission is reestablished to continue the study of the current behavioral health system of care, including services to adults and children, substance abuse and domestic violence when those conditions have an effect upon or are impacted by the system.
(b) The commission consists of:
(1) A representative of the circuit and family court system, appointed by the Chief Justice of the West Virginia Supreme Court of Appeals;
(2) A representative of the Commissioner of the Division of Corrections;
(3) The Commissioner of the Bureau of Senior Services or a designee;
(4) The Secretary of the Department of Health and Human Resources or a designee, who is a nonvoting member;
(5) The Commissioner of the Bureau for Behavioral Health and Health Facilities or a designee, who is a nonvoting member;
(6) The Commissioner of the Bureau for Children and Families or a designee, who is a nonvoting member;
(7) The Executive Director of the West Virginia Chapter of the National Alliance on Mental Illness or a designee;
(8) (7) The Chancellor for Higher Education or a designee, who is a nonvoting member;
(9) (8) One physician with a specialty in psychiatry appointed by the Governor from a list provided by the West Virginia Medical Association;
(10) (9) One physician with a specialty in child psychiatry, appointed by the Governor from a list of names provided by the West Virginia Medical Association;
(11) (10) One member of the advisory board, selected by the advisory board, who shall serve as the vice chairperson of the commission;
(11) The director of the Division of Rehabilitative Services or his or her designee;
(12) The executive director of a behavioral health consumer’s organization or his or her designee;
(13) The director of the West Virginia Coalition Against Domestic Violence or his or her designee;
(12) (14) One member of the House of Delegates, who is a nonvoting member, appointed by the speaker; and
(13) (15) One member of the Senate, who is a nonvoting member, appointed by the president.
(c) The commission shall meet at times and places as it finds necessary and shall be staffed by the Bureau for Behavioral Health and Health Facilities.
(d) The commission shall elect a chairperson from those who are appointed. The chairperson’s term shall be no longer than two consecutive years whereupon the chairperson is to be replaced by a vote of the membership.
(e) The commission shall add or delete additional members of the advisory board at the time when it is apparent that certain expertise is needed and the members of the commission so decide. (e) (f) Effective July 1, 2011 2012, the Comprehensive Behavioral Health Commission Advisory Board is reestablished to serve in a consulting role to the commission with the following members appointed by the Governor:
(1) One member from a list of three candidates provided by the West Virginia Chapter of the National Association of Social Workers;
(2) One member from a list of three candidates provided by the West Virginia Hospital Association;
(3) One member who is a psychologist from a list of three candidates provided by the West Virginia Psychological Association;
(4) One citizen member representative from each medical school affiliated with some aspect of behavioral health from a list of two nominees from each medical school three candidates provided by the Dean of West Virginia University School of Medicine, the Dean of Marshall University School of Medicine and the Dean of the West Virginia School of Osteopathic Medicine;
(5) One member who is an The executive director of a federally qualified health center in West Virginia the Primary Care Association or his or her designee;
(6) One member who is the chief executive officer of a comprehensive behavioral health center;
(7) Two members who are the chairperson or the chief executive officer of a not-for-profit corporation with its principal headquarters in West Virginia, that provides residential or nonresidential care or treatment for children in West Virginia; and
(8) One member from a list of three candidates provided by the Council of Churches;
(9) A consumer of behavioral health services to be selected by the commission;
(10) A child advocate to be selected by the commission from suggestions by FAST (Family Advocacy, Support and Training);
(11) A representative of the West Virginia Coalition Against Domestic Violence to be selected by the commission; and
(12) One representative of the county probation program from a list of three candidates provided to the Governor by the Supreme Court of Appeals.
(f) (g) Those persons serving on the commission and the advisory board on July 1, 2011, may continue serving on the reestablished commission and advisory board and the person so designated as chairperson of the commission shall remain as chairperson until an election occurs as provided in this section.
(g) (h) Each member of the commission and advisory board is entitled to receive compensation and expense reimbursement for attending official meetings or engaging in official duties not to exceed the amount paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law. A commission member may not receive compensation for travel days that are not on the same day as the official meeting or official duties.
The bill (Eng. H. B. No. 4481), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 4630, Modifying the membership of the Braxton County Recreational Development Authority.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Government Organization, were reported by the Clerk, considered simultaneously, and adopted:
On page nine, section nine, lines forty-four and forty-five, by striking out the words “defined in section two, article one, chapter eight of the Code of West Virginia, and”;
And,
On page nine, section nine, line forty-nine, after the word “selling” by striking out the comma and inserting in lieu thereof the word “and”.
The bill (Eng. Com. Sub. for H. B. No. 4630), as amended, was then ordered to third reading.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Eng. Com. Sub. for House Bill No. 4088, Repealing the West Virginia telecommunications tax.
Eng. House Bill No. 4103, Consolidating of government services and enforcement of laws pertaining to the motor carrier industry.
Eng. House Bill No. 4251, Relating generally to amendments to the uniform commercial code.
Eng. Com. Sub. for House Bill No. 4260, Relating to insurance coverage for autism spectrum disorders.
Eng. Com. Sub. for House Bill No. 4345, Prohibiting the unauthorized sale of railroad scrap metal.
Eng. Com. Sub. for House Bill No. 4398, Declaring certain claims against the state and its agencies to be moral obligations of the state.
Eng. House Bill No. 4523, Relating to the Bureau for Child Support enforcement and reporting employment and income of an independent contractor.
Eng. Com. Sub. for House Bill No. 4530, Authorizing the Public Service Commission to consider and issue a financing order to certain regulated electric utilities to permit the recovery of expanded net energy costs.
And,
Eng. House Bill No. 4648, Implementing a domestic violence court pilot project.
Pending announcement of meetings of standing committees of the Senate, including majority and minority party caucuses,
On motion of Senator Unger, the Senate recessed until 5 p.m. today.
Upon expiration of the recess, the Senate reconvened and, at the request of Senator Unger, and by unanimous consent, returned to the fourth order of business.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 677 (originating in the Committee on Finance)--A Bill expiring funds to the surplus balance in the State Fund, General Revenue, for the fiscal year ending June 30, 2012, in the amount of $3,700,000 from the Department of Health and Human Resources - Medicaid Fraud Control Fund, fund 5141, fiscal year 2012, organization 0511, and making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as a surplus balance in the State Fund, General Revenue, to the Department of Health and Human Resources - Division of Human Services, fund 0403, fiscal year 2012, organization 0511, by supplementing and amending the appropriations for the fiscal year ending June 30, 2012.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (S. B. No. 677) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 678 (originating in the Committee on Finance)--A Bill making a supplementary appropriation of public moneys out of the Treasury from the balance of moneys remaining as an unappropriated surplus balance in the State Fund, General Revenue, to the Department of Agriculture, fund 0131, fiscal year 2012, organization 1400, to the Department of Administration, Division of Finance, fund 0203, fiscal year 2012, organization 0209, to the Department of Administration, Public Defender Services, fund 0226, fiscal year 2012, organization 0221, to the Department of Commerce, Division of Forestry, fund 0250, fiscal year 2012, organization 0305, to the Department of Commerce, Division of Natural Resources, fund 0265, fiscal year 2012, organization 0310, to the Department of Education, State Department of Education, fund 0313, fiscal year 2012, organization 0402, to the Department of Education and the Arts, Division of Culture and History, fund 0293, fiscal year 2012, organization 0432, to the Department of Environmental Protection, Division of Environmental Protection, fund 0273, fiscal year 2012, organization 0313, to the Department of Health and Human Resources, Division of Health - Central Office, fund 0407, fiscal year 2012, organization 0506, to the Department of Health and Human Resources, Consolidated Medical Service Fund, fund 0525, fiscal year 2012, organization 0506, to the Department of Health and Human Resources, Division of Human Services, fund 0403, fiscal year 2012, organization 0511, to the Department of Military Affairs and Public Safety, Division of Corrections - Correctional Units, fund 0450, fiscal year 2012, organization 0608, to the Department of Veterans’ Assistance, Department of Veterans’ Assistance, fund 0456, fiscal year 2012, organization 0613, and to Higher Education, West Virginia Council for Community and Technical College Education - Control Account, fund 0596, fiscal year 2012, organization 0420, by supplementing and amending the appropriations for the fiscal year ending June 30, 2012.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (S. B. No. 678) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 56, Requesting DOH name bridge in Mingo County "James A. Bowers, Sr., Memorial Bridge".
House Concurrent Resolution No. 88, The "1st Lt. Therrel Shane Childers Memorial Bridge".
House Concurrent Resolution 89, The "PFC Rodney Kent Ranson Memorial Bridge".
And,
House Concurrent Resolution No. 94, The "Hunnicutt Family Highway".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
At the request of Senator Unger, unanimous consent being granted, the resolutions (S. C. R. No. 56, H. C. R. No. 88, H. C. R. No. 89 and H. C. R. No. 94) contained in the preceding report from the Committee on Transportation and Infrastructure were taken up for immediate consideration and considered simultaneously.
The question being on the adoption of the resolutions, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 4063, Relating to civil service commissions in political subdivisions.
With an amendment from the Committee on Government Organization pending;
And has also amended same.
And reports the same back with the recommendation that it do pass as amended by the Committee on Government Organization to which the bill was first referred; and as last amended by the Committee on the Judiciary.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. Com. Sub. for House Bill No. 4068, Providing that antique motor vehicles be valued at their salvage value for personal property tax purposes.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Robert D. Beach,
Chair.
At the request of Senator Beach, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4068) contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on Transportation and Infrastructure pending.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. Com. Sub. House Bill No. 4245, Permitting certain auxiliary lighting on motorcycles.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Robert D. Beach,
Chair.
At the request of Senator Beach, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4245) contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on the Judiciary, with amendments from the Committee on Transportation and Infrastructure pending.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Eng. Com. Sub. for House Bill No. 4332, Relating to transfer of service credit from Public Employees Retirement System to Emergency Medical Services Retirement System.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Dan Foster,
Chair.
At the request of Senator Prezioso, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Pensions.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 4403, Changing the filing deadline for certified write-in candidates.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Eng. Com. Sub. for House Bill No. 4489, Strengthening authority of the West Virginia Municipal Pensions Oversight Board.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Government Organization.
Respectfully submitted,
Dan Foster,
Chair.
At the request of Senator Snyder, as chair of the Committee on Government Organization, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Pensions.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 4567, Permitting the Harrison county commission to levy a special district tax.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Eng. Com. Sub. for House Bill No. 4613, Relating to development of broadband infrastructure and broadband deployment in this state.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Robert D. Beach,
Chair.
At the request of Senator Beach, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4613) contained in the preceding report from the Committee on Transportation and Infrastructure was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with an amendment from the Committee on Transportation and Infrastructure pending.
Senator Foster, from the Committee on Pensions, submitted the following report, which was received:
Your Committee on Pensions has had under consideration
Eng. House Bill No. 4654, Relating to the provision of mailing services by the CPRB to certain retiree organizations.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Dan Foster,
Chair.
At the request of Senator Foster, unanimous consent being granted, the bill (Eng. H. B. No. 4654) contained in the preceding report from the Committee on Pensions was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Unger, leaves of absence for the day were granted Senators Edgell and Helmick.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Unger, the Senate adjourned until tomorrow, Tuesday, March 6, 2012, at 11 a.m.
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