Senate Bill No. 554

(By Senators Fitzsimmons and Yost)

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[Introduced February 12, 2014; referred to the Committee on Labor; and then to the Committee on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-16-1, §21-16-2, §21-16-3, §21-16-4, §21-16-5, §21-16-6 and §21-16-7, all relating to protecting the health and safety of employees against the effects of silicosis and other respiratory diseases which may result from the dry cutting of masonry units; prohibiting dry cutting of masonry units under certain circumstances; providing the Commissioner of Labor enforcement authority; and allowing imposition of civil penalties on violators, including procedures for imposition, appeal and collection.

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 article, designated §21-16-1, §21-16-2, §21-16-3, §21-16-4, §21-16-5, §21-16-6 and §21-16-7, all to read as follows:

ARTICLE 16. DRY CUTTING AND GRINDING OF MASONRY.

§21-16-1. Purpose.

    The purpose of this article is to protect the health and safety of employees against the effects of silicosis and other respiratory diseases which may result from the dry cutting of masonry units by means of hand-held, gas-powered or electrical, portable chop saws or skill saws and the dry grinding of masonry materials.

§21-16-2. Definitions.

    For purposes of this article:

    "Commissioner" means the Commissioner of the West Virginia Division of Labor or his or her designee;

    "Division" means the West Virginia Division of Labor.

    "Employee" or "worker" means any person suffered or permitted to work by an employer, having a specific regard to any activity related to the erection, construction, alteration, demolition, repair or maintenance of buildings, structures, bridges, highways, roadways, dams, tunnels, sewers, underground buildings or structures, pipelines or ducts and all other construction projects or facilities.

    "Employer" means any corporation, partnership, individual proprietorship, joint venture, firm, company or other similar legal entity engaged in any activity related to the erection, construction, alteration, demolition, repair or maintenance of buildings, structures, bridges, highways, roadways, dams, tunnels, sewers, underground buildings or structures, pipelines or ducts and all other construction projects or facilities.

    "Establishment" means a single physical location where business is conducted or where services or operations are performed, such as a regional office, area office, installation or facility.

    "Field site" means a physical location where an employer performs services or operations, but does not maintain an office or facility.

    "First aid" means any one-time treatment and any follow-up visit for the purpose of observation of minor wounds, scratches, cuts, burns or splinters, which do not ordinarily require medical treatment. A onetime treatment and follow-up visit for the purpose of observation is considered first aid even though provided by a physician or registered professional personnel.

    "Full face respirator" means a negative pressure respirator or a powered air-purifying respirator with a tight fitting full facepiece.

    "High efficiency particulate air filter" means a filter that is at least ninety-nine and ninety seven hundredths percent efficient in removing monodisperse particles of three tenths micrometers in diameter. The equivalent National Institute for Occupational Safety and Health 42 C.F.R. §84 particulate filters are the N100, R100, and P100 filters.

    "Inspection" means any on-site visit of an employer's establishment or field site to ensure that employers are in compliance with this chapter.

    "Medical treatment" includes treatment administered by a physician or by registered professional personnel under the standing orders of a physician. Medical treatment does not include first aid treatment even though provided by a physician or registered professional person.

    "Negative pressure respirator" means a respirator in which the air pressure inside the facepiece is negative during inhalation with respect to the ambient air pressure outside the respirator.

    "Other than serious" means a hazard, violation or condition which cannot reasonably be predicted to cause death or serious physical harm to exposed employees but does have a direct and immediate impact on an employee's safety or health.

    "Powered air-purifying respirator" means an air-purifying respirator that uses a blower to force the ambient air through air-purifying elements to the inlet covering.

    "Serious injury" or "serious physical harm" means any occupational injury or illness which requires treatment beyond first aid.

    "Tight-fitting" means a respiratory inlet covering that forms a complete seal with the face.

§21-16-3. Cutting and grinding of masonry.

    (a) Employers may not engage in the dry cutting of masonry units by means of hand-held, gas-powered or electrical, portable chop saws or skill saws or the dry grinding of masonry materials, unless the employer has first determined in a manner consistent with 29 U.S.C. §651 et seq. (the Federal Occupational Safety and Health Act of 1970), that the use of water in the cutting or grinding is not feasible.

    (b) Where the employer has determined under subsection (a) of this section that the use of water in the cutting or grinding is not feasible, the employer may engage in the dry cutting of masonry units by means of hand-held, gas-powered or electrical, portable chop saws or skill saws or the dry grinding of masonry materials, only where the employer:

    (1) Uses engineering and work practice controls to control the dust, such as a vacuum with a high efficiency particulate air filter, or other dust control systems; and

    (2) Provides workers with full face respirators as part of a complete respiratory program, which is implemented by the employer consistent with the requirements of 29 C.F.R. §1910.134, and include, but is not limited to, training, the proper selection of respiratory cartridges and fit-testing in order to ensure that the workers are able to wear the respirators.

§21-16-4. Right to enter and inspect.

    (a) The commissioner shall enter without delay and at reasonable times any establishment or field site of any employer where work is performed by an employee if there is reason to believe that a violation of this article has occurred or is occurring and to conduct investigations the commissioner considers to be necessary.

    (b) Employers shall permit the commissioner to inspect within the establishment or field site all pertinent conditions, structures, machines, apparatus, devices, equipment and materials.

    (c) Employers shall permit the commissioner to question privately any employee or managerial executive and review all records relating to the requirements in this article.

§21-16-5. Orders to cease.

    (a) If, upon inspection of an establishment or field site, the commissioner discovers a condition which exists in violation of the provisions of this article, he or she is authorized to order the violation to cease.

    (b) Orders to cease shall:

    (1) State with specificity the nature of the cited violation or violations of this article; and

    (2) Provide a reasonable, specified time within which the required remedial action must be taken by the person responsible, if applicable.

    (c) If the commissioner's order is not obeyed, the commissioner may apply for an injunction in the Circuit Court of Kanawha County to compel compliance.

    (d) This article does not prevent the commissioner from prosecuting any violation of the article, notwithstanding that the violation is corrected in accordance with the order.

§21-16-6. Penalties.

    (a) Any violations of any of the provisions of this article are subject to a civil penalty of up to $500.

    (b) If a violation is of a continuing nature, each day during which the violation continues is an additional and distinct offense.

    (c) Penalties imposed under this section may be recovered with costs in a civil action commenced by the commissioner.

    (d) The commissioner may compromise and settle any claim for penalties under this section in an amount the commissioner considers appropriate and equitable under all of the circumstances, including, but not limited to:

    (1) The past record of compliance with the provisions of the article by the person cited;

    (2) The degree of cooperation afforded to the commissioner's representatives by the person cited in securing compliance with the provisions of the article;

    (3) Whether the violation was willful in nature; and

    (4) Whether the violation resulted in injury or bodily harm.

§21-16-7. Hearings.

    (a) No penalty may be imposed under this article unless the alleged violator is provided with:

    (1) Notification of the violation;

    (2) Notification of the amount of the penalty to be imposed; and

    (3) An opportunity to request a formal hearing.

    (b) A request for a formal hearing must be made in writing and received by the commissioner within twenty-one calendar days following the employer's receipt of the notice of violation.

    (c) All hearings shall be conducted in compliance with article five, chapter twenty-nine-a of this code.

    (d) If a hearing is not requested within the twenty-one-day time limit, the notice of violation becomes a final order of the commissioner.

    (e) The alleged violator may request the initiation of a settlement conference at the time that the request for a formal hearing is made. If a settlement conference is requested, or the division determines that a settlement conference would be useful, the settlement conference shall be scheduled and conducted by the division within thirty days of the date upon which the division receives the request for a formal hearing.

    (f) If a settlement is not agreed upon, or no settlement conference is scheduled, a request for a formal hearing shall be transmitted to the commissioner.

    (g) Payment of the penalty is due when a final agency determination is issued or when a notification of violation becomes a final decision as the result of no appeal having been filed by the violator.

    (h) All payments shall be made payable to the division in the form of a certified check or money order or other form the commissioner considers suitable.

    NOTE: The purpose of this bill is to provide protection for the health and safety of employees against the effects of silicosis and other respiratory diseases which may result from the dry cutting of masonry units. It would prohibit dry cutting of masonry units under certain circumstances, provide the Commissioner of Labor enforcement authority, allow the imposition of civil penalties on violators and includes procedures for imposition, appeal and collection.

    This article is new; therefore, strike-throughs and underscoring have been omitted.