This article shall be known and may be cited as the "Employer Assistance For Environmental Protection Act."
It is the purpose of this article to make available to employers in this state assistance in identifying environmental and hazardous waste hazards common to the workplace and to further assist such employers in developing plans for compliance with all such concerns. Such assistance will be provided using the available personnel and resources of the various state agencies involved in the regulation and control of environmental and hazardous waste disciplines.
(a) The division of labor shall:
(1) Encourage employers and employees to reduce existing environmental and hazardous waste hazards and to implement new or improved existing safety and health programs;
(2) Provide technical advice and information relating to environmental hazards and waste hazards;
(3) Develop and implement training programs to increase the employer and employee competence in managing and correcting environmental hazards and waste hazards;
(4) Develop and coordinate an information network relating to applicable environmental and hazardous waste law affecting the business community in West Virginia;
(5) Offer a program of on-site consultation to assist businesses in identifying environmental hazards and waste hazards; and
(6) Offer to businesses an off-site program by telephone or correspondence for information and assistance in complying with environmental regulation.
(b) The commissioner of labor shall develop and implement rules, regulations and administrative guidelines required to effectuate the purposes of this article.
(c) In carrying out the duties and responsibilities imposed by the provisions of subsection (a) of this subsection, or in developing and implementing rules, regulations and administrative guidelines in accordance with the provisions of subsection (b) of this section, the division of labor and the commissioner shall not expend any state funds or utilize any personnel of the division for the training of any permanent replacement employee, unless and until such permanent replacement employee has been determined by the commissioner to have been legally employed.
There is hereby created within the division of labor an environmental assistance resource board to advise and assist the commissioner of labor in developing the technical resources necessary to administer the provisions of this article. The board is composed of the commissioner of the division of labor, who serves as chair; the chief of the office of air quality of the division of environmental protection; the chief of the office of water resources of the division of environmental protection; the chief of the office of waste management of the division of environmental protection; the director of the division of environmental protection; one member of the House of Delegates appointed by the speaker of the House; and one member of the Senate appointed by the president of the Senate. Terms of legislative members of the board run concurrent with the member's legislative term of office.
The board shall meet within thirty days of the effective date of this article and thereafter at the call of the chair. The board shall establish an information network wherein the commissioner of labor and any consultant advising employers, in order to provide accurate information regarding compliance with environmental and hazardous waste rules, may access written materials or staff having technical expertise within the agencies represented on the board. At the request of the board, the secretary of the department of commerce, labor and environmental resources is authorized to direct the assignment of staff, on a temporary or permanent basis, from any agency represented on the board to the division of labor to assist in the implementation of the employer assistance program set forth in this article.
(a) Any employer within the state may request the commissioner of labor in writing to provide advice and assistance in identifying and eliminating environmental hazards in compliance with applicable state, federal and local law. The employer may specify a limited scope for consultation by indicating hazards or situations on which consultation will be focused. No consultation services may be provided when an agency charged with enforcing federal, state or local environmental or hazardous waste regulations has issued a citation or ordered that a condition be abated or corrected.
(b) The commissioner shall provide on-site consultation services in identifying and eliminating environmental hazards. However, since employee contact by a consultant is needed for proper identification of environmental hazards in the workplace, employers must agree to such contact before a consultation may proceed. Employers must agree to correct all hazards noted by the consultant as a condition of the providing of consultation services. Employers are encouraged to permit employees to participate in the walk-around portion of a consultation visit.
(c) Prior to visiting a worksite, the consultant may request specific information concerning the worksite. Requested information must be provided before a consultation may proceed.
(d) If, in the course of an inspection, the consultant observes environmental hazards violating federal, state or local law which are outside the scope of a consultation request, the consultant shall treat such hazards as if they were within the scope of the consultation request.
(e) During the on-site consultation, the consultant shall point out hazards and violations observed, suggest approaches or options for corrective action, and provide additional information related to complying with applicable laws. The consultant shall prepare a written report, which shall be furnished to the employer, of all hazards observed and methods of abatement and may suggest where additional assistance may be secured. The consultant may follow through after the on-site consultation to assist in implementing recommendations and to assure that required corrective action is taken.
(f) Information obtained by a consultant related to environmental hazards and violations may not be disclosed to enforcement officials, except when an employer fails or refuses to take corrective action to eliminate imminent danger or serious hazards.
(g) No fees, penalties or costs may be assessed against the employer.
(h) The use of the consultation services contemplated by this article by any employer shall raise no presumption, inference, or defense to any action, order, citation, charge, rule to show cause, or any other enforcement effort brought against such employer by any agency of the state of West Virginia.
Note: WV Code updated with legislation passed through the 2012 1st Special Session