SB357 HFA Manchin 2-26

Delegate Manchin moves to amend SB357 on pages 83 through 95, by striking out sections 101, 204a, 301, 308, 309 and 310 of the bill, and inserting in lieu thereof, the following:

“22A-2A-301. The West Virginia Diesel Equipment Commission.

The West Virginia Diesel Equipment Commission, consisting of six members, is continued, and commencing July 1, 2010, is a separate independent commission within the Department of Commerce.

§22A-2A-302. Members of the commission; qualifications and eligibility.

(a) Each member of the commission shall be a citizen of the United States and a resident of the State of West Virginia.

(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.

§22A-2A-303. Appointment and terms of commission members.

(a) The members of the commission shall be appointed to initial terms as follows:

(1) Two members shall serve for a term beginning on May 1, 1997, and ending on June 30, 1999;

(2) Two members shall serve for a term beginning on May 1, 1997, and ending on June 30, 2000;

(3) Two members shall serve for a term beginning on May 1, 1997, and ending on June 30, 2001.

(4) Two members shall serve as alternates for a term beginning the effective date of the passage of this Act and ending three years after the same effective date. One member shall be appointed representing the viewpoint or interests of coal operators and one member who represent the viewpoint or interests of working miners. The purpose of the members that are appointed as alternates is to ensure that a full quorum will always be available to fulfill the duties as described in section three-hundred-ten of this article.

(b) Of the two members appointed under each of subdivisions (1), (2), and (3), and (4) 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.

PART 3. WEST VIRGINIA DIESEL EQUIPMENT COMMISSION.

§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.

§22A-2A-305. Removal of members.

When a member fails to appear at three consecutive meetings of the commission or at one half of the meetings held during a one-year period, any member of the commission may notify the member and the Governor of such fact. Such member shall be removed by the Governor unless good cause for absences is shown.

§22A-2A-306. Compensation of members; reimbursement for expenses.

Each member of the commission shall be paid the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties. No reimbursement for expenses shall be made except upon an itemized account, properly certified by the members of the commission. All reimbursement for expenses shall be paid out of the State Treasury upon a requisition on the State Auditor.

§22A-2A-307. Quorum; majority vote required.

A quorum of the commission consists of not less than two of the members who represent the viewpoint or interests of coal operators and two of the members who represent the viewpoint or interests of working miners. A measure before the commission for its consideration is adopted on the affirmative vote of any four of the six members. Audio and or video conferencing shall be allowed for members to establish a quorum, participate and vote on issues brought before the commission during regularly scheduled meetings. In the event a regular appointee is not available, an appointed alternate shall fulfill his or her duties.

§22A-2A-308. Promulgation of initial rules by the commission.

(a) The West Virginia diesel equipment commission shall prepare and adopt the initial rules for the operation of diesel equipment in underground coal mines in this state. In preparing and adopting initial rules, the commission shall consider the highest achievable measures of protection for miners’ health and safety through available technology, engineering controls and performance requirements and shall further consider the cost, availability, adaptability and suitability of any available technology, engineering controls and performance requirements as they relate to the use of diesel equipment in underground coal mines.

(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.

§22A-2A-309. Commission’s authority to approve site-specific experimental testing prior to initial rules.

The commission is hereby authorized to approve limited site-specific requests for experimental and testing use of diesel-powered equipment in underground coal mines prior to promulgation of initial rules in accordance with subsections (b), (c), (d), (e), (f) and (g), section three hundred ten of this article. Final approval of a site-specific request 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.

§22A-2A-310. Duties of commission following promulgation of initial rules.

(a) After the promulgation of the initial rules, the commission shall have as its primary duties the implementation of this article and the evaluation and adoption of state of the art technology and methods, reflected in engines and engine components, emission control equipment and procedures, that when applied to diesel-powered underground mining machinery shall reasonably reduce or eliminate diesel exhaust emissions and enhance protections of the health and safety of miners. The technology and methods adopted by the commission shall have been demonstrated to be reliable. In making a decision to adopt new technology and methods, the commission shall consider the highest achievable measures of protection for miners’ health and safety through available technology, engineering controls and performance requirements and shall further consider the cost, availability, adaptability and suitability of any available technology, engineering controls and performance requirements as they relate to the use of diesel equipment in underground coal mines. Any state of the art technology or methods adopted by the commission shall not reduce or compromise the level of health and safety protection of miners.

(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.”