(b) When used in this article, the words and phrases defined in section two, article one of this chapter have the meaning ascribed to them in that section. Those definitions are applicable to this article unless a different meaning clearly appears from the context in which the word or phrase is used in this article.
(b) No member of the Legislature, or person holding any elective or full-time appointive office in the federal, state, or local government shall be eligible to serve as a member of the commission.
(1) Two members shall serve for a term beginning on the first day of May, one thousand nine hundred ninety-seven, and ending on the thirtieth day of June, one thousand nine hundred ninety-nine;
(2) Two members shall serve for a term beginning on the first day of May, one thousand nine hundred ninety-seven, and ending on the thirtieth day of June, two thousand;
(3) Two members shall serve for a term beginning on the first day of May, one thousand nine hundred ninety-seven, and ending on the thirtieth day of June, two thousand one.
(b) Of the two members appointed under each of subdivisions (1), (2) and (3), subsection (a) of this section, one shall be a person who can reasonably be expected to represent the viewpoint or interests of coal operators in this state and one shall be a person who can reasonably be expected to represent the viewpoint or interests of working miners in this state.
(c) Members serving on the commission on the effective date of the amendment of this section may continue to serve until the expiration of their terms. Thereafter, members shall be nominated and appointed in the manner provided in this section and section three hundred four of this article.
(d) After the initial appointments, all members shall be appointed for terms of four years. Members are eligible for reappointment.
§22A-2A-304. Nomination and appointment of members.
(a) Prior to the appointment of a person to the commission, the Governor shall request the nomination of a candidate for the appointment. If the position is to be filled by a person who can reasonably be expected to represent the viewpoint or interests of underground coal operators in this state, the Governor shall request the nomination from the major trade association representing underground coal operators in this state. If the position is to be filled by a person who can reasonably be expected to represent the viewpoint or interests of working miners in this state, the Governor shall request the nomination from the highest ranking officer of the major employee organization representing coal miners in this state. The Director of the Office of Miner's Health, Safety and Training or his or her designee and the Health Safety Administrator shall serve as a nonvoting ex officio member.
(b) The Governor shall appoint a member to serve for the term for which the person was nominated, and until his or her successor has been nominated and appointed: Provided, That if a successor is not appointed within one hundred twenty days after the expiration of a member's term, a vacancy is deemed to exist. The Governor may reject a nomination and decline to appoint a nominee only if the person does not have the qualifications, integrity and responsibility necessary to enable the person to perform his or her duties as a member of the commission.
(c) Appointments to fill vacancies on the commission shall be for the unexpired term of the member to be replaced.
(b) In promulgating the initial rules pursuant to subsection (a) of this section, the commission shall follow the procedures set forth in article three, chapter twenty-nine-a of this code that are prescribed for an agency proposing a legislative rule, to the point where an agency would approve a rule for submission to the Legislature. At that point, the commission shall proceed to final adoption of the initial rules and file a notice of the final adoption in the state register and with the legislative rule-making review committee. Final adoption of the initial rules may be approved only upon a majority vote of all six members of the commission. All six members must be present when a vote is taken. Upon final adoption by the commission, the initial rules are thereby promulgated and have the effect of law without further action by the commission or the Legislature. The initial rules shall be published in the code of state rules and continue in effect until modified or superseded in accordance with the provisions of this article.
(b) Upon application of a coal mine operator, the commission shall consider site-specific requests for the use of diesel equipment in underground coal mines and for the use of alternative diesel-related health and safety technologies and methods. The commission's action on applications submitted under this subsection shall be on a mine-by-mine basis. Upon receipt of a site-specific application, the commission shall conduct an investigation, which investigation shall include consultation with the mine operator and the authorized representatives of the miners at the mine. Authorized representatives of the miners shall include a Mine Health and Safety Committee elected by miners at the mine, a person or persons employed by an employee organization representing miners at the mine or a person or persons authorized as the representative or representatives of miners of the mine in accordance with MSHA regulations at 30 C.F.R. Pt. 40 (relating to representative of miners). Where there is no authorized representative of the miners, the commission shall consult with a reasonable number of miners at the mine. Upon completion of the investigation, the commission may approve the application for the site-specific request: Provided, That an application for a site-specific request under this subsection may be approved only upon a majority vote of all six members of the commission. All six members must be present when a vote is taken.
(1) Within one hundred eighty days of receipt of an application for use of alternative technologies or methods, the commission shall complete its investigation. The time period may be extended with the consent of the applicant.
(2) The commission shall have thirty days in which to render a final decision approving or rejecting the application.
(3) The commission members shall not approve an application made under this section if, at the conclusion of the investigation, the commission members have made a determination that the use of the alternative technology or method will reduce or compromise the level of health and safety protection of miners.
(4) The written approval of an application for the use of alternative technologies or methods shall include the results of the commission's investigation and describe the specific conditions of use for the alternative technology or method.
(5) The written decision to reject an application for the use of alternative technologies or methods shall include the results of the commission's investigation and shall outline in detail the basis for the rejection.
(c) The commission shall establish conditions for the use of diesel-powered equipment in shaft and slope construction operations at coal mines.
(d) In performing its functions, the commission shall have access to the services of the Board of Coal Mine Health and Safety. The board shall provide administrative support and assistance pursuant to section six, article six of this chapter, to enable the commission to carry out its duties.
(e) Any action taken by the commission to either approve or reject the use of an alternative technology or method, or establish conditions under subsection (c) of this section, shall be final and binding and not subject to further review except where a decision by the commission may be deemed to be an abuse of discretion or contrary to law. If any party affected by a decision of the commission believes that the decision is an abuse of discretion or contrary to law, that party may file a petition for review with the circuit court of Kanawha County in accordance with the provisions of the administrative procedures act relating to judicial review of governmental determinations. The court, in finding that any decision made by the commission is an abuse of discretion or contrary to law, shall vacate and, if appropriate, remand the case.
(f) The powers and duties of the commission shall be limited to the matters regarding the use of diesel-powered equipment in underground coal mines.
(g) Appropriations for the funding of the commission and to effectuate the purposes of this article shall be made to a budget account hereby established for that purpose in the General Revenue Fund. Expenditures from this fund are provided for in section six, article six of this chapter.
(h) The commission may issue a clarifying resolution about the initial rules and other matters consistent with the powers and duties of the commission under this article. A unanimous vote is required for any clarifying resolution by the commission.
§22A-2A-401. General provisions relating to requirements for
This part 4 is intended to control the potential health hazards of diesel exhaust, by requiring that diesel-powered machines be equipped with clean-burning engines, that exhaust emissions control and conditioning systems may be required on diesel engines as specified by the commission, that exhaust emissions be monitored and controlled and that standards be established for the allowable concentrations of exhaust emissions in a mine environment.
The rules of the commission shall require all exhaust emissions control and conditioning systems to undergo an initial series of laboratory tests, using test equipment requirements and standard procedures approved by the commission for testing for gaseous and particulate emissions. The commission shall compile a list of acceptable third-party laboratories where testing is performed competently and reliable results are produced.
(b) Requirements and standards for exhaust emissions control and conditioning systems include, but are not limited to, the following:
(1) A minimum standard, stated as an average percentage, for the reduction of diesel particulate matter emissions by a diesel particulate matter filter or other comparably effective emissions control device;
(2) A minimum standard, stated in parts per million, for the reduction of emissions of undiluted carbon monoxide, using an oxidation catalyst or other gaseous emissions control device;
(3) A minimum standard, stated in parts per million, for the reduction of emissions of oxides of nitrogen, using advanced control technology such as catalytic control technology or other comparably effective control methods;
(4) Any additional requirements established by the rules of the commission or MSHA regulations relating to requirements for permissible mobile diesel-powered transportation equipment set forth in part 36, title thirty of the code of federal regulations, 30 C.F.R. §36.1, et seq.
(b) Rules of the commission shall establish the concentration of exhaust gas, stated as a percentage of an exposure limit, that when present will require changes to be made in the use of diesel-powered equipment or the methods of mine ventilation, or will require other modifications in the mining process.
(c) Rules of the commission shall provide for the remedial action to be taken if the concentration of any of the gases listed in subsection (a) of this section exceeds the exposure limit.
(d) In addition to the other maintenance requirements required by this article, rules of the commission shall provide for service, maintenance and tests which are specific to an engine's fuel delivery system, timing or exhaust emissions control and conditioning system.
(b) Rules of the commission shall require that each specific model of diesel-powered equipment shall be approved before it is taken underground. The rules shall provide that in addition to requiring that each diesel engine have an assigned MSHA approval number securely attached to the engine with the information required by 30 C.F.R. §§ 7.90 and 7.105, the approval plate shall also specify the minimum ventilating air quantity required by the commission for the specific piece of diesel-powered equipment. The rules shall provide that the minimum ventilating air quantity be determined based on the amount of air necessary at all times to maintain the exhaust emissions at levels not exceeding the exposure limits established by the commission pursuant to section four hundred six of this article.
(c) Rules of the commission shall require that the minimum quantities of air in any split where any individual unit of diesel-powered equipment is being operated shall be at least that specified on the approval plate for that equipment. Air quantity measurements to determine compliance with this requirement shall bemade at the individual unit of diesel-powered equipment.
(d) Rules of the commission shall establish the minimum quantities of air required in any split when multiple units are operated. Air quantity measurements to determine compliance with this requirement shall be made at the most downwind unit of diesel-powered equipment that is being operated in that air split.
(e) Rules of the commission shall provide that minimum quantities of air in any split where any diesel-powered equipment is operated shall not be less than the minimum air quantities established pursuant to subsections (a) and (b) of this section and shall be specified in the mine diesel ventilation plan.
(b) Rules of the commission shall require each coal mine using diesel equipment underground to establish a quality control plan for assuring that the diesel fuel used complies with the standards established pursuant to this section. The rules shall also establish a procedure under which each mine operator will provide evidence that the diesel fuel used in diesel-powered equipment underground meets the standards for fuel established by the commission.
(b) (1) Rules of the commission shall either provide:
(A) That all stationary underground diesel fuel tanks are prohibited; or
(B) That a stationary underground diesel fuel tank may only be authorized through a petitioning process that permits a stationary underground diesel fuel tank to be located in a permanent underground diesel fuel storage facility, on a site-specific basis. Stationary underground diesel fuel tanks may not be located in temporary underground diesel fuel storage areas.
(c) Rules of the commission shall govern the transportation and storage of diesel fuel in diesel fuel tanks and safety cans.
(d) Rules of the commission shall establish limits on the total amount of diesel fuel that may be stored in each permanent underground diesel fuel storage facility and in each temporary underground diesel fuel storage area.
necessary. For those cases where fueling in the intake escapeways is necessary, the rules shall establish a procedure whereby the mine operator shall submit a plan for approval, outlining the special safety precautions that will be taken to insure the protection of miners. The plan shall specify a fixed location where fueling will be conducted in the intake escapeway and all other safety precautions that will be taken, which shall include an examination of the area for spillage or fire by a qualified person.
(b) Rules of the commission shall require that at least one person, specially trained in the cleanup and disposal of diesel fuel spills, shall be on duty at the mine when diesel-powered equipment or mobile fuel transportation equipment is being used or when any fueling of diesel-powered equipment is being conducted.
(b) Rules of the commission shall provide for all miners to be trained in precautions for safe and healthful handling and disposal of diesel-powered equipment filters.
(b) Rules of the commission shall provide that service and maintenance of diesel-powered equipment shall be performed according to a specified routine maintenance schedule, on-board performance and maintenance diagnostics readings, emissions test results, and component manufacturer's recommendations.
(b) Rules of the commission shall require that the training and qualification program and record made available for inspection pursuant to the provisions of 30 C.F.R. §75.1915(c) be made available to the commission or its authorized representative.
(b) Rules of the commission shall prescribe the scope of the examination and testing and the procedures to be followed, and the rules requiring testing of undiluted exhaust emissions may exceed the written standard operating procedures for such testing and evaluation required by part 75 of the code of federal regulations, set forth in 30 C.F.R. §75.1915(g).
(1) That a record be made of all tests, examinations and maintenance and repairs of diesel-powered equipment;
(2) That the person performing the test, examination, maintenance or repair certify by date, time, engine hour reading, and signature that the test, examination, maintenance or repair was made;
(3) That records of tests and examinations include the specific results of such tests and examinations;
(4) That records of maintenance and repairs include a description of the work or service that was performed, and the results of any subsequently required emissions testing.
(b) Rules of the commission shall specify the persons who are required to countersign records of tests, examinations, maintenance and repairs.
(c) Rules of the commission shall establish procedures and time periods for the retention of records and their availability for inspection by the commission and by miners and their representatives.
(1) Fundamentals of the operation of a diesel engine;
(2) Federal and state regulations governing the use of diesel-powered equipment;
(3) The mine operator's rules for safe operation;
(4) Specific features of each piece of equipment; and
(5) Problem recognition.
(b) Required training shall include equipment specific, hands-on orientation given in an area of the mine where the equipment will be operated. This orientation shall be specific to the type and make of the diesel machine and shall be presented in small groups.
(c) Rules of the commission shall establish a certification process for qualifying equipment operators to operate a specific type of diesel-powered equipment. An operator may be qualified to operate more than one type of equipment by completing additional equipment-specific training covering differences specific to each additional type of equipment.
(d) Rules of the commission shall require refresher training, separate from that required by MSHA regulations at 30 C.F.R. Pt. 48(relating to the training and retraining of miners), and annual recertification.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.