H. B. 4085
(By Mr. Speaker Mr. Thompson, and Delegates Marshall, Caputo, Boggs, Miley, Butcher, Mahan, Moye, Barker, Sumner and Hamilton)
[Introduced January 16, 2012; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-5B-6; to amend and reenact §22A-1-15, §22A-1-21, §22A-1-22 of said code; to amend said code by adding thereto a new section, designated §22A-1-40; to amend and reenact §22A-2-2, §22A-2-12, §22A-2-16, §22A-2-43 and §22A-2-78 of said code; to amend and reenact §22A-7-5 of said code; and to amend said code by adding thereto a new article, designated §22A-12-1 and §22A-12-2, all relating to miners health and safety; directing the creation of a hotline to receive anonymous tips regarding mine safety; extending payment of wages period for idled miners when operator fails to abate hazardous condition; establishing and enhancing criminal and civil penalties for certain violations on mining laws and regulations; authorizing withdraw by miner from unsafe area or condition and providing process for restatement; allowing persons interviewed in a mine accident investigation to allow certain persons to be present; allowing family members of miners to have representatives attend accident investigations when miner not available; providing ventilation surveys and review by the director; directing Board of Miners’ Training, Education and Certification to conduct training at mines where certain safety violations occur; requiring mine superintendent or owner-operator to verify all mine reports; requiring that cutter heads, long wall shears and other mining machines automatically shut-off when the methane level reaches one and twenty-five one hundredths percent; establishing an Underground Mining Accident Investigation Panel when serious mining accidents occur; directing the Governor to constitute the panel when an accident occurs; providing membership and appointment, duties and operation of the panel; and providing that the Director of the Office of Miners’ Health, Safety and Training undertake a program overview of enforcement laws, procedures and protocols to make recommendations on how to better enforce state mining laws.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §15-5b-6; that §22A-1-15, §22A-1-21, §22A-1-22 be amended and reenacted; that said code be amended by adding thereto a new section, designated §22A-1-40; that §22A-2-2, §22A-2-12, §22A-2-16, §22A-2-43 and §22A-2-78 of said code be amended and reenacted; that §22A-7-5 of said code be amended and reenacted; and that said code be amended by adding thereto a new article, designated §22A-12-1 and §22A-12-2, all to read as follows:
CHAPTER 15. PUBLIC SAFETY
ARTICLE 5B. MINE AND INDUSTRIAL RAPID RESPONSE SYSTEM.
§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 leave electronic messages reporting mine safety violations, hazardous 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 recorded messages are confidential and not subject to release. The director shall distribute printed information to all state mining operations, alerting miners of 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. MINERS’ HEALTH, SAFETY & TRAINING.
ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING; ADMINISTRATION; ENFORCEMENT.
§22A-1-15. Findings, orders and notices.
(a) If upon any inspection of a coal mine an authorized representative of the director finds that an imminent danger exists, the representative shall determine the area throughout which the danger exists and shall immediately issue an order requiring the operator of the mine or the operator's agent to cause immediately all persons, except those referred to in subdivisions (1), (2), (3) and (4), subsection (e) of this section, to be withdrawn from and to be prohibited from entering the area until an authorized representative of the director determines that the imminent danger no longer exists.
(b) If upon any inspection of a coal mine an authorized representative of the director finds that there has been a violation of the law, but the violation has not created an imminent danger, he or she shall issue a notice to the operator or the operator's agent fixing a reasonable time for the abatement of the violation. If upon the expiration of the period of time, as originally fixed or subsequently extended, an authorized representative of the director finds that the violation has not been totally abated, and if the director also finds that the period of time should not be further extended, the director shall find the extent of the area affected by the violation and shall promptly issue an order requiring the operator of the mine or the operator's agent to cause immediately all persons, except those referred to in subdivisions (1), (2), (3) and (4), subsection (e) of this section, to be withdrawn from and to be prohibited from entering the area until an authorized representative of the director determines that the violation has been abated.
(c) If upon any inspection of a coal mine an authorized representative of the director finds that an imminent danger exists in an area of the mine, in addition to issuing an order pursuant to subsection (a) of this section, the director shall review the compliance record of the mine.
(1) A review of the compliance record conducted in accordance with this subsection shall, at a minimum, include a review of the following:
(A) Any closure order issued pursuant to subsection (a) of this section;
(B) Any closure order issued pursuant to subsection (b) of this section;
(C) Any enforcement measures taken pursuant to this chapter, other than those authorized under subsections (a) and (b) of this section;
(D) Any evidence of the operator’s lack of good faith in abating violations at the mine;
(E) Any accident, injury or illness record that demonstrates a serious safety or health management problem at the mine;
(F) The number of employees at the mine, the size, layout and physical features of the mine and the length of time the mine has been in operation; and
(G) Any mitigating circumstances.
(2) If, after review of the mine’s compliance record, the director determines that the mine has a history of repeated significant and substantial violations of a particular standard caused by unwarrantable failure to comply or a history of repeated significant and substantial violations of standards related to the same hazard caused by unwarrantable failure to comply and the history or histories demonstrate the operator’s disregard for the health and safety of miners, the director shall issue a closure order for the entire mine and shall immediately issue an order requiring the operator of the mine or the operator's agent to cause immediately all persons, except those referred to in subdivisions (1), (2), (3) and (4), subsection (e) of this section, to be withdrawn from and to be prohibited from entering the mine until a thorough inspection of the mine has been conducted by the office and the director determines that the operator has abated all violations related to the imminent danger and any violations unearthed in the course of the inspection.
(d) All employees on the inside and outside of a mine who are idled as a result of the posting of a withdrawal order by a mine inspector shall be compensated by the operator at their regular rates of pay for the period they are idled but not more than the balance of the shift during the balance of that shift. If the order is not terminated prior to the next working shift, all the employees on that shift who are idled by the order are entitled to full compensation by the operator at their regular rates of pay for the period they are idled but for not more than four hours of the shift during the eight hours of the next working shift. If the operator refuses to comply or abate the hazard or condition causing the withdrawal order, employees on the inside and outside of a mine who are idled as a result of the posting of a withdrawal order are entitled to full compensation by the operator at their regular rates of pay for the period they are idled, up to ten days.
(e) The following persons are not required to be withdrawn from or prohibited from entering any area of the coal mine subject to an order issued under this section:
(1) Any person whose presence in the area is necessary, in the judgment of the operator or an authorized representative of the director, to eliminate the condition described in the order;
(2) Any public official whose official duties require him or her to enter the area;
(3) Any representative of the miners in the mine who is, in the judgment of the operator or an authorized representative of the director, qualified to make coal mine examinations or who is accompanied by such a person and whose presence in the area is necessary for the investigation of the conditions described in the order; and
(4) Any consultant to any of the persons set forth in this subsection.
(f) Notices and orders issued pursuant to this section shall contain a detailed description of the conditions or practices which cause and constitute an imminent danger or a violation of any mandatory health or safety standard and, where appropriate, a description of the area of the coal mine from which persons must be withdrawn and prohibited from entering.
(g) Each notice or order issued under this section shall be given promptly to the operator of the coal mine or the operator's agent by an authorized representative of the director issuing the notice or order and all the notices and orders shall be in writing and shall be signed by the representative and posted on the bulletin board at the mine.
(h) A notice or order issued pursuant to this section may be modified or terminated by an authorized representative of the director.
(i) Each finding, order and notice made under this section shall promptly be given to the operator of the mine to which it pertains by the person making the finding, order or notice.
(j) Definitions. –- For the purposes of this section only, the following terms have the following meanings:
(1) “Unwarrantable failure” means aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of this chapter of the code; and
(2) “Significant and substantial violation” shall have has the same meaning as that established in 6 FMSHRC 1 (1984).
(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 $10,000, 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 knowingly permits or willfully contributes to a violation of any safety standard pursuant to this chapter or a rule promulgated thereunder is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned 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.
(a) No person shall may discharge or in any other way discriminate against or cause to be discharged or discriminated against any miner or any authorized representative of miners by reason of the fact that the person believes or knows that such the miner or representative: (1) Has notified the director, his or her authorized representative, or an operator, directly or indirectly, of any alleged violation or danger; (2) has filed, instituted or caused to be filed or instituted any proceeding under this law; or (3) has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this law. No miner or representative shall may be discharged or in any other way discriminated against or caused to be discriminated against because a miner or representative has in good faith, done (1), (2) or (3) above.
(b) No person may discharge, discipline or in any manner discriminate against a miner for refusing to work in an area or under conditions which he or she believes in good faith to be unsafe. The miner to qualify for this protection must communicate or attempt to communicate the safety or health concern to the operator.
(b) (c) Any miner or a representative of miners who believes that he or she has been discharged or otherwise discriminated against or any miner who has not been compensated by an operator for lost time due to the posting of a withdrawal order, may, within thirty days after such the alleged violation occurs, apply to the appeals board as provided by article five of this chapter, for a review of such alleged discharge, the discrimination or failure to compensate. Any miner or who believes that he or she has been disciplined, or in any manner discriminated against because of a refusal to work in an area or under conditions which he or she believes to be unsafe pursuant to subsection (b) of this section, may file a complaint with the board within ninety days from the date of after the alleged violation occurred or when the miner knew or should have know the violation occurred. If a the miner or representative of miners has been discharged pursuant to an alleged violation of this section, the complaint shall be filed with the Director of the Office of Miners’ Health, Safety and Training, who shall cause the alleged violation to be given to the board. A copy of the application shall be sent to such person who shall be the respondent. Upon receipt of such the application, the appeals board shall cause such an investigation to be made, as it deems considers appropriate. Such The investigation shall provide an opportunity for a public hearing at the request of any party to enable the parties to present information relating to such the violation. The parties shall be given written notice of the time and place of the hearing at least five days prior to the hearing. Mailing of the notice of hearing to the charged party at the party's last address of record as reflected in the records of the office is adequate notice to the charged party. Such The notice shall be by certified mail, return receipt requested. Any such hearing held shall be of record. Upon receiving the report of such the investigation, the board shall make findings of fact. If it finds that such the violation did occur, it shall issue a decision within forty-five days, incorporating an order therein, requiring the person committing such violation to take such affirmative action to abate the violation as the board deems considers appropriate, including, but not limited to, the rehiring or reinstatement of the miner or representative of miners to his or her former position with back pay, and also pay compensation for the idle time as a result of a withdrawal order. If it finds that there was no such violation, it shall issue an order denying the application. Such The order shall incorporate the board's finding therein. If the proceedings under this section relative to discharge are not completed within forty-five days of the date of discharge due to delay caused by the operator, the miner shall be automatically reinstated until the final determination. If such the proceedings are not completed within forty-five days of the date of discharge due to delay caused by the board, then the board may, at its option, reinstate the miner until the final determination. If such the proceedings are not completed within forty-five days of the date of discharge due to delay caused by the miner the board shall may not reinstate the miner until the final determination.
(c) (d) Whenever an order is issued under this section, at the request of the applicant, a sum equal to the aggregate amount of all costs and expenses including the attorney's fees as determined by the board to have been reasonably incurred by the applicant for, or in connection with, the institution and prosecution of such the proceedings, shall be assessed against the person committing such the violation.
§22A-1-40. Reporting violations, accident investigations; witness interviews.
(a) Any person subject to a subpoena pursuant to section four of this article, or any other person voluntarily meeting with or providing a statement to the director may do so without the consent, presence, involvement or knowledge of the operator or of the operator’s agents or attorneys. The director shall keep the identity of any individual providing such a statement confidential, to the extent permitted by law. Nothing in this section precludes a person under subpoena or voluntarily speaking with the director from authorizing a operator or his agent of the operator’s agents or attorneys, or a representative of a labor organization representing miners, to participate in such meeting or statement.
(b) If any miner is entrapped, killed or otherwise prevented, as the result of an accident, from participation in an accident investigation, the miner’s closest relative may designate a representative to attend witness interviews and hearings regarding the accident. The representative must be a licenced attorney or a representative of a labor organization representing miners.
ARTICLE 2. MINERS’ HEALTH, SAFETY AND TRAINING.
§22A-2-2. Plan of ventilation; approval by Director of the Office of Miners' Health, Safety and Training.
Every operator of a coal mine, before making any new or additional openings, shall submit to the director, for his or her information and approval, a general plan showing the proposed system of ventilation and ventilating equipment of the openings, with their location and relative positions to adjacent developments; no such new or additional openings shall may be made until approved by the director. The operator shall deliver to the miners' representative employed by the operator at the mine a copy of the operator's proposed annual ventilation plan at least ten days prior to the date of submission. The miners' representative shall be afforded the opportunity to submit written comments to the operator prior to such the submission; in addition the miners' representative may submit written comments to the director. Prior to approval of the ventilation plan, the director shall conduct a ventilation survey of the mine to establish the necessary minimum requirements to properly ventilate the mine. The director shall promptly approve any such plans submitted, if the proposed system of ventilation and ventilating equipment meet the requirements of this article. When an operator repeatedly submits amendments to a ventilation plan which the director rejects as being inadequate, or when the submissions exhibit a pattern of failure to use proper ventilation engineering design standards, the director shall revoke the ventilation plan, and order withdraw of the mine until proper plans are approved by the director are implemented.
§22A-2-12. Instruction of employees and supervision of apprentices; annual examination of persons using flame safety lamps; records of examination; maintenance of methane detectors, etc.
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. Upon a finding by the director that a pattern of violations is occurring at a mine that would benefit by additional safety training of miners and other employees at the mine, the director shall notify the Board of Miners’ Training, Education and Certification, which shall cause additional training to occur at the mine addressing the safety issue or issues, pursuant to article seven of this chapter.
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 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.
Persons whose duties require them to use a flame safety lamp 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 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 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 the lamp or other device is in a permissible condition.
§22A-2-16. Examinations of reports of fire bosses.
The mine foreman and the superintendent or owner-operator of the mine 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.
§22A-2-43. Electric equipment in mines.
(a) Methane. -- Electric equipment shall may not be taken into or operated in any place where methane can be detected with a flame safety lamp or other approved methane detector at one percent or more at any point not less than twelve inches from the roof, face or rib.
(b) Return air. -- In all mines, electric haulage locomotives operated from trolley wire and other electrical equipment or devices which may ignite gas shall may not be used in return air, unless permission is granted by the director for a specified area. For the purpose of this provision, air used to ventilate a section of a mine shall may not be considered return air until such time as the air has ventilated all of the workings in the section.
(c) Qualified person to operate cutting machine. -- No person shall may 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.
(d) Inspections. -- In any mine no machine shall may be brought in by the last breakthrough next to the working face until the machine man shall have has made an inspection for gas in the place where the machine is to work. If explosive gas in excess of one percent is found in the place, the machine shall may not be taken in until the danger is removed.
(e) Indication of gas. -- In working places a suitable approved apparatus for the detection of explosive gas, shall be provided for use with each mining machine when working, and should any indication of explosive gas in excess of one percent appear on any apparatus used for the detection of explosive gas, the person in charge shall immediately stop the machine, cut off the current at the nearest switch and report the condition to the mine foreman or supervisor. The machine shall may not again be started in such that place until the condition found has been corrected and been pronounced safe by a certified person.
(f) Periodic gas examinations. -- No electric equipment shall may be operated in a mine for a longer period than twenty minutes without an examination as above described being made for gas; and if gas is found in excess of one percent, the current shall at once be switched off the machine, and the trailing cable shall forthwith be disconnected from the power supply until the place is pronounced safe.
(g) Operation of mining machines. -- Machine runners 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 may not move the machine while the cutter chain is in motion.
(h) Automatic shut-down of mining machines. -- Mining machine extraction apparatus, including, but not limited to, long wall sheers and cutter heads, are required to be equipped with an automatic shut-off device that will cut off power to the machine’s extraction apparatus, but not to the machine as a whole to facilitate proper mining procedures, if the methane level in the mine reaches one and twenty-five one hundredths percent. The machine’s apparatus may not again be started in that place until the condition found has been corrected and been pronounced safe by a certified person.
§22A-2-78. Examinations to determine compliance with permits.
(a) Whenever permits are issued by the Office of Miners' Health, Safety and Training, frequent examinations shall be made by the mine inspector during the tenure of the permit to determine that the requirements and limitations of the permit are complied with.
(b) Any person who knowingly causes or conspires to cause advanced notice of examinations of permit compliance by a mine inspector 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.
ARTICLE 7. BOARD OF MINERS 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) The board shall establish an education and training program for all miners that provides a minimum of one hour of instruction on miners rights as they relate to unsafe conditions and machinery and his or her right to withdrawal from unsafe conditions. If the Office of Miners’ Health, Safety and Training recommends to the board, or the board identifies a pattern of conduct that is creating a hazardous condition at a mine, the office may require more instruction and training on proper safety procedures.
ARTICLE 12. UNDERGROUND ACCIDENT INVESTIGATIONS.
§22A-12-1. Underground Mining Accident Investigative Panel.
(a) There is established the “Underground Mining Accident Investigative Panel” to conduct independent investigations of serious mining accidents, for the purpose of undertaking to make findings and recommendations to the Legislature and the Board of Coal Mine Health and Safety regarding causes of serious mining accidents, to recommend actions to reduce further similar accidents and to encourage proper investigation and enforcement of existing mining laws and regulations when accidents occur. To help facilitate an informed and impartial investigation panel, staff and any consultants assisting the panel shall be free from conflicts of interest with regard to any investigation.
(b) For purposes of this section a “serious mining accident” is any accident that causes the death of three or more miners or if the accident is of such severity or scale for potential or actual harm that, when three or more deaths are caused in an mining accident or in the opinion of the Governor a serious accident merits an independent investigation by the panel.
(c) The panel is to be constituted by the Governor upon the occurrence of a serious mining accident. The panel is to investigate the cause of the accident, whether there was a violation or violations of law, a mandatory health and safety regulation or other lawful requirement, and if a violation is found, whether enforcement actions have been undertaken to assure proper enforcement of administrative, civil and criminal laws.
(d) The panel shall consist of five persons. The chairperson of the Board of Coal Mine Health and Safety shall be the chairperson of the panel. The second member of the panel shall be a designee of the National Institute for Occupational Safety and Health Office of Mine Safety. The remainder of the appointees shall be appointed as follows:
(1) The Governor shall appoint one member whom represents the viewpoint of coal operators in this state. The Governor shall request from the major trade association representing operators in this state a list of three nominees for the position on the panel. All the nominees shall be persons with special experience and competence in health and safety, who are not currently holding a mining permit or otherwise active in mining activities. There shall be submitted with the list a summary of the qualifications of each nominee. If the full lists of nominees are submitted in accordance with the provisions of this subdivision, the Governor shall make the appointments from the persons so nominated. For purposes of this subdivision, the major trade associations representing operators in this state are an association which represents operators accounting for over one half of the coal produced in mines within this state in the year prior to the year in which the appointment is to be made.
(2) The Governor shall appoint one member who can reasonably be expected to represent the viewpoint of the working miners of this state. The Governor shall request from the major employee organization representing coal miners within this state a list of three nominees. The highest ranking official within the major employee organization representing coal miners within this state shall submit a list of three nominees for each such position on the board. The nominee shall have a background in health and safety. The Governor shall make the appointments from the requested list of nominees.
(3) The final member shall by selected by the Governor as an objective expert in the field of mining health and safety, and with expertise in conducting mine accident investigations. This appointee is prohibited from retaining current employment within the mining industry or be a member of any labor organization representing miners.
(4) The panel shall be constituted upon declaration by the Governor that a serious mining accident occurred.
(e) The Director of the Office of Miners’ Health, Safety and Training shall provide staffing and meeting facilities for the panel to allow it to carry out its duties and responsibilities. The panel may employ personnel, including legal counsel, experts and consultants, it considers necessary.
(f) The director may extend to panel members the per diem compensation, milage reimbursement, and authorization to use the state government discount rate received by state legislators, for the duration of his or her duties on the Mine Safety Investigative Panel.
(g) In addition to the report by the panel, as provided in this section, each individual member of the panel has a right to submit a separate report, setting forth any views contrary to the report of the panel, and the separate report, if any, shall be appended to the report of the panel and be considered a part of the report.
(h) The director shall order the Mine Safety Investigative Panel to dissolve upon reception of the panel's findings and recommendations.
§22A-12-2. 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, regulations and policies, consider various options for improving inspections, accountability and equitable and timely administrative procedures that cause remediation of hazardous working conditions.
NOTE: The purpose of this bill is to implement mining safety reforms to address the tragic deaths that occurred on April 5th, 2010 at the Upper Big Branch Mine in Raleigh County, West Virginia, by implementing comprehensive reforms recommended by mine safety teams investigating causes of that disaster intended to prevent future mining fatalities; establishing toll-free number for miners to make anonymous tips on mining violations; increasing penalties for violating underground mining safety requirements; enhancing penalties for intentional violations of mine safety laws; encouraging miners to withdraw from unsafe working conditions; establishing additional miner safety training, including additional training related to repeated violations; extending miners’ pay for periods of being idled by mining companies failure to remediate hazardous safety violations; providing opportunity for miners families to participate in mine accident investigations; providing for shut-off of underground equipment when dangerous methane levels are detected; allowing miners discretion in allowing company representatives and others from participation in accident investigation interviews; establishing the Underground Mining Accident Investigation Panel to be constituted following a serious mine accident; and providing that a study be conducted to assess the need to revise administrative enforcement processes and policies to promote timely and effective enforcement of mining safety laws.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§15-5B-6, §22A-1-40, §22A-12-1 and §22A-12-2 are new; therefore, they have been completely underscored.