§64-10-1. Office of Miners' Health, Safety and Training.

     (a) The legislative rule filed in the State Register on March 26, 2013, authorized under the authority of section six, article one, chapter twenty-two-a of this code, relating to the Office of Miners' Health, Safety and Training (assessing health and safety violation penalties, 56 CSR 12 ), is authorized.

     (b) The legislative rule filed in the State Register on July 26, 2013, authorized under the authority of section four, article one, chapter twenty-two-a of this code, relating to the Office of Miners' Health, Safety and Training (program for the sharing of information between employers, 56 CSR 18 ), is authorized.

     (c) The legislative rule filed in the State Register on March 26, 2013, authorized under the authority of section fourteen, article six, chapter twenty-two-a of this code, modified by the Office of Miners' Health, Safety and Training to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 20, 2013, relating to the Office of Miners' Health, Safety and Training (substance abuse screening, standards and procedure, 56 CSR 19 ), is authorized with the following amendments:

     On page two, after subsection 3.7, by inserting a new subsection, designated subsection 3.8, to read as follows:

     3.8. Duly licensed, mental health professional. The term "duly licensed, mental health professional" means a psychiatrist, psychologist, professional counselor or substance abuse counselor in the United States who is licensed by, and in good standing with, the licensing authority of the jurisdiction in which the person practices.;

     And by renumbering the remaining subsections;

     On page four, subsection 3.17, by striking out the word "accidents" and inserting in lieu thereof the word "accident";

     On page six, by striking out all of subsection 4.7 and inserting in lieu thereof a new subsection, designated subsection 4.7, to read as follows:

     4.7. Any applicant, who is adversely affected by a decision of the Director following a hearing on an application for safety- sensitive certification, may petition for judicial review of the Director's decision in the Circuit Court of Kanawha County or in the circuit court of the county in which the applicant resides, pursuant to the provisions of W. Va. Code § 29A-5-4.;

     On page six, subsection 4.8, by striking out the word "shall" and inserting in lieu thereof the word "may";

     On page six, subsection 5.2, by striking out subsection 5.2 in its entirety and inserting in lieu thereof, a new subsection 5.2 to read as follows:'Every employer's program shall at a minimum comply with all state mine laws relevant to substance abuse screening, standards and procedures.";

     On page seven, subdivision 5.3.5, by striking out the word "Pphencyclidine" and inserting in lieu thereof the word "Phencyclidine";

     On page eight, subsection 5.5, by striking out "5.5" and inserting in lieu thereof "5.6";

     And by renumbering the remaining subsections;

     On page nine, subsection 5.11, by striking out the subsection in its entirety, and inserting in lieu thereof a new subsection 5.11., as follows:

     "5.11 Every employer shall notify the director, on a form prescribed by the director, within seven (7) days of any of the following:

     5.11.a A positive drug or alcohol test of a certified person, whether it be a pre-employment test, random test, reasonable suspicion test, or post-accident test;

     5.11.b. The refusal of a certified person to submit a sample;

     5.11.c. A certified person possessing a substituted sample or an adulterated sample; or

     5.11.d. A certified person submitting a substituted sample or an adulterated sample."

     On page nine, after subdivision 5.11.d. by inserting two new subsections designated 5.12. and 5.13., to read as follows:

     "5.12. When the employer submits the completed notification form prescribed by the director, the employer shall also submit a copy of the laboratory test results showing the substances tested for and the results of the test.

     5.13. A notice pursuant to subdivision 5.11., shall result in the immediate temporary suspension of all certificates held by the certified person who failed the screening, pending a hearing before the board of appeals, except in the case of a certified person who is subject to a collective bargaining agreement, in which case the notification pursuant subsection 5.11., shall not result in the immediate temporary suspension of any certificate held by the certified person who is subject to a collective bargaining agreement unless and until the arbitration is concluded and the discharge is upheld, and no certificate held by a certified person who is subject to a collective bargaining agreement shall be suspended or revoked unless the discharge is upheld in arbitration."

     And by renumbering the remaining subsections;

     On page eleven, subdivision 6.1.2, by striking out the words "Notify the Board of Appeals" and inserting in lieu thereof the words "Notify the Director";

     On page eleven, subsection 6.2, by striking out the words "notify the Board of Appeals" and inserting in lieu thereof the words "notify the Director";

     On page fourteen, subsection 8.1, by striking out the words "is found, by a preponderance of the evidence, to have: failed" and inserting in lieu thereof the words "has entered into a treatment plan agreement as specified in subsection 9.1 of this rule or who is found, by a preponderance of the evidence, to have failed";

     On page fourteen, by striking out all of subsection 8.2 and inserting in lieu thereof three new subsections, designated subsections 8.2, 8.3 and 8.4, to read as follows:

     8.2. Any person requesting a hearing who intends to challenge the sample collection methods, the laboratory test results, the medical review officer's verification of the laboratory test result or the chemical test of breath, shall notify the Director of his or her intent. The person shall submit the notification in writing, either in person or by mail to the Director, at least fourteen (14) days prior to the hearing date. The notification shall specify, in detail, the challenge the person intends to make.

     8.3. If the person requesting the hearing submits notification in writing to the Director that he/she intends to challenge the laboratory test results of the medical review officer's verification of the laboratory test result, that person shall have the split sample tested, at his/her expense, at a SAMSHA-certified laboratory and those results verified by a medical review officer. The split sample results and the results of the split sample verification by a medical review officer shall be provided to the Director and the original medical review officer. No other form of evidence shall be admissible to challenge the laboratory test result of the medical review officer's verification of the laboratory test result.

     8.4. If a person fails to comply with the notification requirements of this section, then the sample collection methods, the laboratory test results, the medical review officer's verification of the laboratory test result, or the chemical test of breath shall be admissible as though the person and the Director had stipulated to their admissibility.;

     And by renumbering the remaining subsections;

     On page fifteen, subdivision 9.1.1, by striking out the words "treatment at a facility licensed by the State of West Virginia in substance abuse" and inserting in lieu thereof the words "treatment, counseling and after-care under the supervision of a duly licensed, mental health professional";

    On page fifteen, subdivision 9.1.2, by striking out the words "treatment at a facility licensed by the State of West Virginia in substance abuse" and inserting in lieu thereof the words "treatment, counseling and after-care under the supervision of a duly licensed, mental health professional";

     On page fifteen, subdivision 9.1.3, by striking out the words "treatment at a facility licensed by the State of West Virginia in substance abuse" and inserting in lieu thereof the words "treatment, counseling and after-care under the supervision of a duly licensed, mental health professional";

     And,

     On page sixteen, after subdivision 9.1.4, by adding the following:

     "9.1.5. An admission by the individual that he or she has failed or refused a drug and alcohol test for the first time and that a second failure or refusal shall result in the permanent revocation of all mining certifications issued to him or her.

     9.2. The Director shall review all Treatment Agreements and shall not approve any Agreement that does not comply with this rule.

     9.3. The Director shall insure an individual has satisfied all conditions for reinstatement before reinstating any certificate."