Title 56 W. Va. C.S.R.

Miners' Health, Safety And Training Miners' Health, Safety And Training

Series 01 Procedure and Practice Before the Office of Miners' Health, Safety and Training

W. Va. Code R. § 56-1-1 General

1.1. Scope.

1.1.1. The procedures and rules of practice set forth herein shall govern and apply to proceedings before Presiding Officers, the Director of the Office of Miners Health, Safety and Training, or the agency generally including proceedings to assess monetary civil penalties pursuant to W. Va. Code 22A-1-21, proceedings to review orders and notices pursuant to W. Va. Code 22A-1-17 and proceedings initiated upon a petition for declaratory ruling pursuant to W. Va. Code 29A-4-1.

1.1.2. In any proceedings initiated prior to the effective date of this rule, the provisions hereof shall govern and apply to all activities in such proceedings conducted after the effective date of this rule. Except when ordered by the Office of Miners Health, Safety and Training, no reissuance of any pleading, documents or requests shall be required in such a proceeding.

1.1.3. This rule shall be liberally construed to secure the just, prompt and inexpensive conduct and determination of all proceedings before the Office of Miners Health, Safety and Training consistent with adequate consideration of the issues involved.

1.1.4. On any procedural question not regulated by this rule, the pertinent provisions of the Administrative Procedure Act shall apply. On any matter not regulated by this rule and for which there is no pertinent provision in the Administrative Procedure Act, the provisions of the West Virginia Rules of Civil Procedure or the rules of evidence and privilege applicable in the courts of general jurisdiction of this State, as appropriate, shall apply.

1.2. Authority. -- W. Va. Code 22A-1-6.

1.3. Filing Date. -- July 27, 2023.

1.4. Effective Date. -- August 31, 2023.

W. Va. Code R. § 56-1-2 Definitions

2.1. Unless the context in which a word or phrase appears clearly requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2.

2.1.1. Assessment Officer: The term Assessment Officer shall mean any person or persons designated and appointed by the Director of the Office of Miners Health, Safety and Training to carry out the duties of the Assessment Officer outlined in Section 4.2. of this rule.

2.1.2. Assessment Review Officer: The term Assessment Review Officer shall mean any person or persons designated and appointed by the Director of the Office of Miners Health, Safety and Training to carry out the duties of the Assessment Review Officer set forth in Section 4.3. of this rule.

2.1.3. Code: The term Code when following a reference to a specific section, article, and chapter, shall mean the West Virginia Code of 1931, as amended.

2.1.4. Director: The term Director means the Director of the Office of Miners Health, Safety and Training.

2.1.5. Declaratory ruling: The term declaratory ruling means a decision and order issued by the Director of the Office of Miners Health, Safety and Training as a ruling pursuant to W. Va. Code 29A-4-1.

2.1.6. Mine: The term mine shall mean any mine as defined in W. Va. Code 22A-1-2, and any surface mine as that term is defined in W. Va. Code R. 56‑3-3.58.

2.1.7. Notice of Violation: The term Notice of Violation shall mean a notice issued pursuant to the provisions of W. Va. Code 22A-1-15.

2.1.8. Notice of Assessment: The term Notice of Assessment shall mean a notice issued for the assessment of a civil penalty pursuant to the provisions of W. Va. Code 22A-1-21, and described in Section 3.2. of this rule.

2.1.9. OMHST: The term OMHST shall mean the Office of Miners Health, Safety and Training.

2.1.10. Presiding Officer: The term Presiding Officer shall mean the Director of OMHST or any person authorized by the Director to conduct hearings required or authorized under the coal mine health and safety laws of this State.

2.1.11. Representative of Miners: The term Representative of Miners shall mean a person or organization designated by a group of miners to act as their representative before OMHST.

2.1.12. Withdrawal order: The term Withdrawal Order means an order issued pursuant to W. Va. Code 22A-1-15.

W. Va. Code R. § 56-1-3 Rules of Practice and Procedure

3.1. Parties.

3.1.1. In proceedings to assess monetary civil penalties against any operator of a coal mine under W. Va. Code 22A-1-21(a) and when the amount of the assessment only is in dispute, the parties shall be:

3.1.1.a. the operator against whom a penalty is proposed, and

3.1.1.b. the OMHST.

3.1.2. In proceedings to assess monetary civil penalties against any miner under W. Va. Code 22A-1-21(a)(3), the parties shall be:

3.1.2.a. the miner charged with a violation and against whom a penalty is proposed, and

3.1.2.b. the OMHST.

3.1.3. In proceedings to assess monetary civil penalties against any operator of a coal mine under W. Va. Code 22A-1-21 and where the amount of the assessment only is in dispute, the parties shall be:

3.1.3.a. the operator against whom a penalty is proposed, and

3.1.3.b. the OMHST.

3.1.4. In proceedings to assess monetary civil penalties under W. Va. Code 22A-1-21(c), the parties shall be:

3.1.4.a. the corporate operator, director, officer, agent or other person or persons charged with a violation and against whom a penalty is proposed, and

3.1.4.b. the OMHST.

3.1.5. In proceedings to review an order or notice under W. Va. Code 22A-1-17 or in a proceeding to assess monetary civil penalties against any operator of a coal mine under W. Va. Code 22A-1-21(a), (b) and (c), where the operator is disputing the notice or order alleging a violation, the parties shall be:

3.1.5.a. the representatives of the miners at the mine affected by the notice of order, and

3.1.5.b. the operator of the affected mine, and

3.1.5.c. the OMHST.

3.1.6. In proceedings initiated by a petition for declaratory ruling pursuant to W. Va. Code 29A-4-1, the parties shall be:

3.1.6.a. the person requesting a declaratory ruling,

3.1.6.b. the OMHST, and

3.1.6.c. any interested person of record allowed to intervene under Section 3.2. of this rule or any other person so allowed to intervene.

3.2. Intervention.

3.2.1. Any person claiming a right of participation in a proceeding on the basis that the person has an interest in the outcome of the proceedings or any person otherwise seeking to intervene in a proceeding may become a party to a proceeding upon the Presiding Officers granting of such persons petition to intervene.

3.2.2. A petition seeking intervention must be written, setting forth the interest of the petitioner in the proceedings, containing a showing that petitioners participation will assist in the determination of the issues in question, and such petition must be served, contemporaneously with the filing, on the Director who shall serve such petition on all other parties to the proceeding.

3.2.3. Any party may file objections to a petition for intervention within fifteen (15) days after service of the petition on the party.

3.2.4. A petition for leave to intervene may be filed at any stage of a proceeding before the commencement of a hearing. After the commencement of a hearing, a petition for leave to intervene may be filed only with the waiver by all parties or upon a showing by the petitioner of good cause for the delay in seeking intervention.

3.2.5. The Presiding Officer may grant or deny petitions for intervention or may permit intervention limited to a particular stat of the proceeding.

3.3. Form of documents.

3.3.1. Caption. The documents filed in any proceeding conducted under these rules shall be captioned in the name of the person or persons charged with a violation or seeking relief from the Department and may contain or include other information appropriate for the identification of the proceeding, including any docket number assigned to the case.

3.3.2. Title. After the caption, each such document shall contain a title which shall be descriptive of the document and which shall identify the party by whom the document is submitted.

3.3.3. Signature. The original of each document filed shall be signed at the end by the party submitting the document, or, if the party is represented by an attorney, by such attorney. The address and telephone number of the party or the attorney shall appear beneath the signature.

3.4. Filing and service of pleadings and other documents.

3.4.1. Where to file. All pleadings or documents in a proceeding described in these rules shall be filed with the Director, Office of Miners Health, Safety and Training, 7 Players Club Drive, Suite 2, Charleston, West Virginia 25311.

3.4.2. Number of copies. Except as otherwise provided in these rules, a party shall furnish an original and two (2) copies of all pleadings and other documents required or permitted to be filed.

3.4.3. How to file. All filing may be accomplished by personal delivery, first class mail, facsimile or e-mail.

3.4.4. When filing effective. In the case of mailing by first class mail and/or e-mail, filing is effective upon mailing. In the case of personal delivery, filing is effective upon delivery.

3.4.5. Copies to be served. Copies of all pleadings and other documents filed in any proceeding described in these rules and copies of all notices pertinent to such proceedings shall be served upon all other parties to the proceeding.

3.4.6. Method of service. Documents by which any proceeding is initiated shall be served on each other party personally or by registered or certified mail, return receipt requested. All subsequent documents may be served personally or by first class mail. Service by mail is complete upon mailing.

3.4.7. Service of attorney. Whenever a party is represented by an attorney who has signed any document filed on behalf of such party or otherwise entered an appearance on behalf of such party, service thereafter shall be made upon the attorney.

3.4.8. Proof of service. Any person initiating a proceeding under these rules shall file proof of service in the form of (i) a certificate of service, or (ii) a return receipt where service is by certified mail, or (iii) an acknowledgement by the party served or (iv) a verified return where service is made personally. The certificate of service shall include a statement of how and when service was accomplished.

3.5. Amendments.

3.5.1. The strict formal requirements in pleadings are not required to be observed in documents, answers or any other papers filed with the OMHST and amendments or supplemental statements may be made and filed at any time prior to a scheduled hearing as long as the documents are filed and served as called for under these rules at least ten (10) days prior to the scheduled hearing date. If a party desires to file amended or supplemental statements less than ten (10) days before the scheduled hearing of the matter, the party or his representative shall make a written request to the Presiding Officer to file those amendments along with the amendments. Said request will set forth with particularity the reason for the need to file such documents at the late date. The Presiding Officer will then allow or disallow the filing based solely on his discretion as justice might require.

3.5.2. A further and better statement of any cause or ground of complaint or defense, or a further and better statement of particulars of any matter stated, in any document, may in any case be ordered at the discretion of the Presiding Officer.

3.6. Motions.

3.6.1. Unless made during a hearing, all motions shall be in writing, contain a short and plain statement of the grounds on which it is based, and set forth the relief sought. Motions may be accompanied by appropriate supporting material or discussion of the reasons for granting the motion.

3.6.2. A statement in opposition to a motion may be filed by any party within ten (10) days after the date of service.

3.6.3. Any motion, including motions made during the hearing and except for motions relating to jurisdiction or directed verdict or for a motion for reconsideration of the final decision of the Commissioner, made less than ten (10) days before the commencement of an evidentiary hearing shall contain a showing of good cause for the motion not having been filed prior to the ten (10) day period.

3.6.4. Unless ordered by the Presiding Officer, oral argument on motions will not be heard.

3.7. Consolidation of proceedings.

3.7.1. The Presiding Officer may at any time order a proceeding described in these rules consolidated with any other such proceeding then pending before the Department, if such a consolidation is, in the opinion of the Presiding Officer, a more efficient and expeditious manner of taking evidence, as long as all parties to the proceeding are afforded due process of law and fair opportunity to present and make a record of evidence.

3.8. Hearings.

3.8.1. All hearings shall be conducted by a Presiding Officer in accordance with the provisions of Section 3 of this rule, and all such hearings shall be open to the public.

3.9. Public access to departmental records.

3.9.1. Subject to reasonable regulation by the Director, all agency records relating to the assessment of monetary civil penalties or review proceedings under the coal mine health and safety laws of this State shall be open for public inspection.

3.9.2. The Director shall, from time to time, publish a list of final orders entered by the Department. Such list shall include the person against whom a violation was charged and the amount of the penalty paid or assessed or the relief sought and granted, as appropriate.

3.9.3. The Director shall make available to public inspection, all final orders, decisions and opinions in the adjudication of cases under the provisions of this rule.

3.9.4. Notwithstanding the above provisions, upon the motion of any party to a proceeding, the Director may take appropriate action to protect as confidential, trade secrets or sensitive information about individuals. However, under no circumstances shall this section be deemed to protect as confidential, proposed orders of assessments, final orders and decisions, or the dates on which meetings and conferences were held and the procedures by which cases were disposed of.

3.10. Time.

3.10.1. In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday when the offices of the government of this State are closed, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday when the offices of the government of this State are closed.

3.10.2. When by this rule or by a notice given thereunder, an act is required or allowed to be done at or within a specified time, the Presiding Officer may extend such time for good cause at the expiration of the prescribed time or at the expiration of any earlier granted extension, upon the showing that the failure to act was for good cause.

3.10.3. Whenever any party has the right or is required to do some act or undertake some proceedings within a prescribed period after service of a notice or other document upon him/her and the notice or document is served upon the party by mail, three (3) days shall be added to the prescribed period.

3.11. Discovery.

3.11.1. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in a pending proceeding. The party requesting discovery shall have the burden of showing the necessity and relevancy of any materials, answers or testimony desired. All requests for public records directed to the OMHST shall be in accordance with the provisions of W. Va. Code 29B-1-1.

3.11.2. Discovery shall be completed within sixty (60) days after commencement of a proceeding. For good cause shown, the Presiding Officer may permit the time for discovery to be extended.

3.11.3. Parties may obtain discovery of any relevant matter, not privileged, that is admissible evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

3.11.4. Upon application by a party or by the person from whom discovery is sought or upon its own motion, the Presiding Officer may, for good cause shown, make any order limiting discovery to prevent undue delay or to protect a party or person from annoyance, oppression, or undue burden or expense.

3.11.5. Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories. If the parties are unable to agree thereto, the time, place, and manner of taking depositions shall be governed by the order of the Presiding Officer.

3.11.6. Any party may service written interrogatories or requests for admission upon another party. A party served with written interrogatories or a request for admission shall answer such interrogatories or request within fifteen (15) days of service unless the proponent of the interrogatories or request agrees to a longer time, or unless the Presiding Officer by order specifies a different time or excuses the party from answering in good cause shown. Interrogatories shall be answered under oath. For good cause shown, the Presiding Officer may order a party to produce and permit inspection, copying, or photographing of designated documents or objects.

3.12. Ex parte communications.

3.12.1. There shall be no ex parte communication with respect to the merits of any case not concluded, between the Presiding Officer and any of the parties or intervener, representatives, or other interested persons.

3.12.2. In the event an ex parte communication in violation of this section occurs, the Director or the Presiding Officer may make such orders or take such action as fairness requires. Upon notice and hearing, the Director or the Presiding Officer may take disciplinary action against any person who knowingly and willfully makes or causes to be made a prohibited ex parte communication.

3.12.3. All ex parte communications in violation of this section shall be placed on the public record of the proceedings.

3.12.4. Any inquiries concerning filing requirements, the status of cases before the Presiding Officer, or docket information shall be directed to the OMHST, 7 Players Club Drive, Suite 2, Charleston, West Virginia 25311. Telephone 304-558-1425.

W. Va. Code R. § 56-1-4 Rules Applicable To Proceedings Initiated to Assess Civil Penalties

4.1. Scope.

4.1.1. This section governs and is applicable to proceedings initiated by the Director to assess civil penalties under W. Va. Code 22A-1-21. In addition to the rules contained in this section, the general rules of practice before the OMHST contained in Section 3 and the rules relating to hearings held by the OMHST contained in Section 3 are also applicable to such proceedings.

4.2. Assessment officer.

4.2.1. Within thirty (30) days after the effective date of these regulations, the Director shall designate and appoint the inspectors-at-large and their designees to act as Assessment Officer(s) for the OMHST. It shall be the duty of the Assessment Officer to review withdrawal orders and notices of violation, and prepare Notices of Assessment.

4.3. Assessment review officer.

4.3.1. Within thirty (30) days after the effective date of these regulations, the Director shall designate and appoint a person or persons to act as Assessment Review Officer(s) for the OMHST. It shall be the duty of the Assessment Review Officer, upon request for a pre-hearing conference by an operator or miner who has been notified of a proposed civil penalty assessment pursuant to W. Va. Code 22A-1-21, to review the civil assessments, accept statements and documents from the party requesting the conference, and hold the requested pre-hearing conference pursuant to Section 4.7. of this rule.

4.4. How initiated: notice of assessment.

4.4.1. Upon the completion of any inspection of a coal mine, it shall be the duty of each mine inspector, or representative of the OMHST making said inspection, to deliver to the Assessment Officer a copy of each finding, order, or notice issued during said inspection or prior inspections, which has been abated by the operator or individual charged in said finding, order, or notice with a violation, or if not abated by the operator or individual, then delivery of each finding, order or notice shall be made within a reasonable time after the time for abatement has expired.

4.4.2. Within thirty (30) days after receipt of a copy of a notice or order issued by a mine inspector or authorized representative of the OMHST during a mine inspection, the Assessment Officer shall prepare a Notice of Assessment and forward the same to an Assessment Review Officer for service upon the person or persons charged with the violation of the state coal mine health and safety law, in accordance with the provisions of Section 3 of this rule.

4.4.3. Each Notice of Assessment shall contain:

4.4.3.a. the name of the operator, miner or other person charged with a violation;

4.4.3.b. the name and address of the mine inspector or representative of the OMHST who discovered or witnessed the alleged violation and reported the same to the Director;

4.4.3.c. the health or safety rule or regulation or law which the Assessment Officer believes has been violated;

4.4.3.d. the time, date, location, and circumstances of the alleged violation;

4.4.3.e. the amount of the proposed penalty;

4.4.3.f. such other information as the Director may require.

4.4.4. Any of the above information may become part of the Notice of Assessment by attaching the same thereto.

4.5. Procedures for assessment of civil penalties.

4.5.1. Within thirty (30) days after receipt of the Notice of Assessment, an Assessment Review Officer shall review the same and determine whether or not the proposed assessment should be recalculated using the guideline outlined in W. Va. Code 22A-1-21(a)(1).

4.5.2. The Assessment Review Officer shall, within thirty (30) days after receipt of the Notice of Assessment, by certified mail, return receipt requested, serve upon the operator or miner charged (1) a copy of the Notice of Assessment, (2) a copy of the notice or order which is the basis for the Notice of Assessment, and (3) a written statement indicating to the person charged with a violation that a civil penalty may only be assessed after the person charged with a violation has been given an opportunity for a public hearing and the manner in which the person charged with a violation may request a hearing.

4.5.3. The operator or miner shall have thirty (30) days from receipt of the Notice of Assessment to either (1) pay the penalty, (2) request, in writing, a conference with the Assessment Review Officer to provide information relating to the violation listed in the Notice of Assessment, or (3) request, in writing, a hearing on the violation in question pursuant to Section 3 of this rule. If the operator or miner does not exercise his right under this subsection within thirty (30) days of receipt of the Notice of Assessment, the Notice of Assessment will become a final Order of Assessment which will be due immediately and enforceable under W. Va. Code 22A-1-21.

4.6. Payment of assessment.

4.6.1. Upon receipt of the assessment by certified check or money order by the operator, miner or other person, the Assessment Review Officer shall close the case with respect to any civil penalties.

4.6.2. Payment of the assessment should be sent to the Assessment Review Officer, Office of Miners Health, Safety and Training, 891 Stewart Street, Welch, West Virginia 24801. Checks should be made payable to the OMHST.

4.7. Conference.

4.7.1. Upon receipt of a request for a conference, the Assessment Review Officer shall arrange for a timely conference convenient to all parties and the Assessment Review Officer.

4.7.2. If the party or parties request a conference with the Assessment Review Officer, he/she may submit any additional information to the Assessment Review Officer which may be relevant to the fact of the violation or the amount of the penalty. Such information may be submitted prior to the conference and discussed during the conference. To expedite the conference, the Assessment Review Officer may contact the party or parties to discuss the case prior to such conference.

4.7.3. At and/or subsequent to the conference, the Assessment Review Officer will consider all relevant information on the violation(s) in question presented by the party or parties and is authorized to decrease, increase or leave the same amount of the assessed penalty on the basis of any new information presented to him/her. When the facts warrant a finding that no violation of the coal mine health and safety laws of this State occurred, a penalty will not be assessed and the subject notice of violation or order will be vacated.

4.7.4. If the party or parties appear in person and the issues are resolved, they may, at this time, tender payment of the amount agreed upon and thereby dispose of the case, or they may have twenty (20) days within which to submit payment to the Assessment Review Officer of the amount agreed upon and thereby dispose of the case. All such agreements must be in writing and signed by both parties. Failure to tender payment of the agreed amount within the twenty (20) day period will result in the agreed amount being entered as the final order of the Director, enforceable under W. Va. Code 22A-1-21. If the agreed amount is the same or greater than the original assessed amount or if the agreed amount is less than the original amount, the agreed amount will be increased to the original assessed penalty, all at the discretion of the Assessment Review Officer.

4.7.5. If all issues cannot be resolved during a conference, the party or parties may tender payment for those violations upon which an assessment amount has been agreed as provided in Subsection 4.7.4. of this section. Violations not resolved will be the subject of notice of hearing to assess civil penalty provided for in Section 4.8. of this section.

4.8. Assessment of civil penalties - How initiated.

4.8.1. A proceeding for the assessment of a civil penalty shall be initiated by the Assessment Review Officer by filing a Notice of Assessment Proceeding with the Director and by serving a copy of the notice on the party against whom a penalty is sought. Such notices shall be prepared, filed and served within thirty (30) days, after (1) an operator, miner, person or persons request a hearing after receipt of a Notice of Assessment, or (2) the Assessment Review Officer and a party charged with a violation are unable to resolve all issues concerning such violation during a conference as provided in Section 4.7. of this rule.

4.8.2. The Notice of Assessment Proceeding shall include a list of the alleged violations for which a civil penalty is sought to be assessed. In addition, the Notice of Assessment pertaining to each alleged violation contained on such list shall be included with the Notice of Assessment Proceeding.

4.8.3. Upon receipt of a Notice of Assessment Proceeding, the Director shall immediately appoint a Presiding Officer for all proceedings relating thereto.

4.9. Answer.

4.9.1. A party against whom a penalty is sought shall file an answer within twenty (20) days after service of a Notice of Assessment Proceeding with the Director. Notice to the party charged must be given at the time.

4.10. Contents of answer.

4.10.1. All answers shall contain:

4.10.1.a. A short and plain statement of the reasons why each of the violations listed in the Notice of Assessment Proceeding are contested, including whether a violation occurred; and

4.10.1.b. A request for a hearing, or an express waiver of the right to a hearing and a request for a formal consideration of the issues by the Presiding Officer.

4.11. Summary disposition.

4.11.1. Failure to answer. Where the party charged with a violation(s) fails to timely file an answer to the Notice of Assessment Proceeding, such party will be deemed to have waived his right to hearing, and the Notice of Assessment shall be forwarded to the Director for entry as a final order.

4.11.2. Failure to appear at hearing. When a person charged with a violation fails to appear at a hearing conducted under Section 3 of this rule, the Director may dispose of the case or otherwise formally consider it in accordance with the provisions contained in Section 3 of this rule.

4.12. Decisions and orders after hearing or formal consideration of the case.

4.12.1. After the filing of an answer in a case, the Presiding Officer shall schedule and conduct a hearing regarding the case or otherwise formally consider it in accordance with the provisions contained in Section 3 of this rule.

4.12.2. Where, after hearing or after submission of the case and consideration of the record as a whole or in the event a hearing is waived, the Presiding Officer finds that a violation of the coal mine health and safety laws of this State has occurred, he shall determine the amount of the penalty which is warranted in accordance with W. Va. Code 22A-1-21, and this rule, and incorporate in a decision concerning the violation findings of fact, conclusions of law and an order setting forth the amount of any penalty and a requirement that the penalty be paid. Each decision and order against an operator shall contain findings of fact on each of the following criteria: the operators history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, the gravity of the alleged violation, and the demonstrated good faith of the operator charged in attempting to achieve rapid compliance after notification of the alleged violation.

4.12.3. Where, after hearing or after submission of the case and consideration of the record as a whole in the event a hearing is waived, the Presiding Officer determines that no violation occurred, he/she shall incorporate in a decision concerning the violation findings of fact, conclusions of law and an order vacating the notice of violation or order and dismissing the proceeding to assess civil penalty.

4.12.4. In proceedings where the Presiding Officer is not the Director, the record in the case and the decision and order of the Presiding Officer shall be forwarded to the Director for his/her review. The Director shall approve, alter and approve or reject the decision and order of the Presiding Officer. In the event the Director rejects the decision and order of the Presiding Officer, the Director shall forthwith prepare a final decision and order to replace the decision and order rejected.

4.12.5. A copy of all decisions and orders prepared by or approved by the Director shall be served, by certified mail, return receipt requested, upon all parties and, unless the decision and/or order otherwise provides, the decision and order so served shall become effective immediately following service unless a party makes application for rehearing or modification in accordance with Section 5.12. of this rule.

W. Va. Code R. § 56-1-5 Hearings

5.1. Scope.

5.1.1. Unless otherwise specified in this or other rules and regulations, the rules in this section shall govern and apply to hearings conducted by the Director, other Presiding Officer or by the OMHST pursuant to the authority provided in the laws of this State or rules and regulations promulgated pursuant thereto.

5.2. Conduct of hearings.

5.2.1. A Presiding Officer shall conduct every hearing.

5.3. Powers of presiding officers.

5.3.1. The Presiding Officer in connection with conducting a hearing and subject to the rules set forth in this section, may:

5.3.1.a. Administer oaths and affirmations;

5.3.1.b. Issue subpoenas in accordance with the provisions of W. Va. Code 29A-5-1;

5.3.1.c. Rule upon offers of proof and receive relevant evidence;

5.3.1.d. Permit evidentiary depositions to be taken and read as in civil actions in the circuit courts of this State;

5.3.1.e. Permit discovery depositions;

5.3.1.f. Regulate the course of the hearings;

5.3.1.g. Dispose of procedural requests or similar matters;

5.3.1.h. Hold conferences for the settlement or simplification of the issues with the consent of the parties; and

5.3.1.i. Take any other action in connection with such hearing authorized by law.

5.3.2. In any case where the Presiding Officer is not the Director, such Presiding Officer may, on his/her own motion, and shall, at the request of any party, certify any interlocutory ruling to the Director where he/she determines (1) that such ruling involves a controlling question of law, and (2) that an immediate decision on the question by the Director may materially advance the ultimate disposition of the matter before him/her.

5.3.3. In no case shall a Presiding Officer other than the Director enter a final order or decision.

5.4. Notice of hearing: contents of notice.

5.4.1. Unless otherwise specified in this rule, no hearing shall be conducted under this rule or otherwise unless the parties to the proceeding shall have received at least ten (10) days written notice.

5.4.2. Each written notice of the hearing shall contain the date, time, and place of the hearing and a short and plain statement of the matters which are to be the subject of or asserted at the hearing. Such notice shall be given in accordance with the provisions of W. Va. Code 29A-7-2.

5.5. Date, time, and place of hearing.

5.5.1. The date, time, and place of each hearing shall be determined by the Presiding Officer on the basis of convenience to parties and witnesses. Any request for postponement or relocation of a hearing shall be filed and served on all parties no later than five (5) days prior to the originally scheduled date. Such request may be granted upon showing of good cause.

5.6. Representation at hearings.

5.6.1. At hearings held pursuant to this rule, any party may represent himself/herself or be represented by an attorney-at-law admitted to practice before the courts of any state or the District of Columbia. In addition, any party who is also an operator may be represented by a full-time employee, and any miner may be represented by the representative of miners.

5.7. Waiver of evidentiary presentation.

5.7.1. Any party who desires to submit written pleadings, comments or information in lieu of an evidentiary hearing may submit such documents for the Presiding Officers consideration in the matter in the event hearing is waived as provided in Subsection 5.7.2. of this section.

5.7.2. Parties entitled to an evidentiary hearing may waive such right in writing, but unless all entitled parties file timely waivers, a hearing will be conducted. Such waivers must be unequivocal and request the Presiding Officer to decide the matter at issue on the pleadings and written record of the case, including any stipulations the parties might enter or any documents filed in accordance with Subsection 5.7.1. of this section.

5.7.3. When a hearing is waived under the provisions of this section, the written record in the case shall be submitted to the Presiding Officer for decision.

5.8. Burden of proof.

5.8.1. In proceedings under the coal mine health and safety laws of this State, the party initiating the proceeding shall have the burden of proving his/her case by a preponderance of the evidence provided that (a) in a penalty proceeding, the OMHST shall have the burden of proving its case by a preponderance of the evidence, and (b) whenever the violation of any provisions of the state coal mine health and safety laws is an issue, the OMHST shall have the burden of proving the violation by a preponderance of the evidence.

5.9. Proposed findings, conclusions and orders.

5.9.1. The Presiding Officer may request the submission by parties of proposed findings of fact, conclusions of law, and orders, together with a supporting brief. Such proposals and briefs shall be served upon all parties, and shall contain adequate reference to the record and authorities relied upon.

5.10. Hearings to be public.

5.10.1. All hearings conducted under these rules shall be open to the public.

5.11. Decisions and orders.

5.11.1. Within sixty (60) days after conclusion of the hearing or after submission of the case and consideration of the record as a whole in the event a hearing is waived, the Presiding Officer shall render a decision and order which shall be in writing and shall include a statement of (a) findings and conclusions and the reasons or basis therefore on the material issues of fact and law, and (b) the appropriate ruling or order granting in part, or denying the relief sought.

5.11.2. In proceedings where the Presiding Officer is not the Director, the Presiding Officer shall issue and serve a copy of the recommended decision upon all parties by certified mail, return receipt requested. The record in the case and the original recommended decision shall be forwarded to the Director. Within fifteen (15) days of the service of the recommended decision a party adversely affected or aggrieved by such decision may file with the Director, and serve upon all parties, a petition for rehearing pursuant to Subsection 5.12.2. of this rule setting out with particularity the grounds for requesting such rehearing. The Director shall approve, alter, remand or reject the recommended decision and order of the Presiding Officer, and the Director shall, in accordance with the provisions of Section 5.12.2. of this rule, prepare a final decision and order to replace the recommended decision and order rejected.

5.11.3. A copy of all decisions and orders prepared or approved by the Director shall be served, by certified mail, return receipt requested, upon all parties and, unless the decision and/or order provides otherwise, the decision and order so served shall become effective immediately following service.

5.12. Re-opening; re-hearing; modification.

5.12.1. Applications for re-opening a proceeding after hearing or submission and before decision shall be made by petition filed prior to service of a final decision. Such petition shall state specifically the grounds relied upon and, if it be for the purpose of introducing additional evidence, shall also state the nature and purpose of the evidence to be adduced.

5.12.2. Applications for re-hearing or re-argument after decision shall be made by petition filed within fifteen (15) days after service of the recommended or final decision. Such petition shall state specifically the grounds relied upon and, if any decision and order is sought to be vacated, reversed or modified by reason of (1) matters arising since the decision; (2) consequences which would result from compliance with the decision and order; or (3) facts not in the possession of petitioner prior to decision, such reason(s) shall also be stated.

5.12.3. Applications for modification of decisions and orders of the OMHST, which seek only a change in the date of such decisions and orders shall take effect, shall be made by petition filed within fifteen (15) days after service of the final decision, except that, in the event of an unforeseen emergency satisfactorily shown by the petitioner, such relief may be sought informally by telegram or otherwise, upon notice to all parties or attorneys who appeared in the proceeding.

5.12.4. A copy of each petition filed under this section shall be served on all other parties to the original proceeding and each petition shall be accompanied by a certificate showing service upon such parties. Within ten (10) days after such service, an adverse party may file and serve a reply to the petition.

5.12.5. Upon the filing of a reply or upon the failure of an adverse party to reply within ten (10) days after service of a copy of the petition on such party, the Director shall consider the petition, the replies thereto, and the record of the proceeding, and, if he or she determines a hearing upon the petition to be necessary, shall, after ten (10) days’ notice, send to all parties notice to hold such hearing in accordance with the provisions of Section 5 of this rule. Within thirty (30) days after consideration of the petition, the replies thereto and the record of the proceeding, the Director shall issue an order either granting in part or denying the relief requested in the petition.

W. Va. Code R. § 56-1-6 Rules Applicable to Proceedings for Modification, Extension, Termination or Review of Orders And Notices

6.1. Scope.

6.1.1. The rules in this section govern and are applicable to review proceedings initiated pursuant to W. Va. Code 22A-1-17, by operators or representatives of miners in any mine affected by orders and notices of violation issued pursuant to the provisions of W. Va. Code 22A-1-14 and -15. In addition to the rules contained in this section, the general rules of practice before the OMHST contained in Section 3 and the rules relating to hearings held by the OMHST contained in Section 5 are also applicable to such proceedings.

6.2. By whom modification, extension, termination or review proceedings may be initiated.

6.2.1. The following persons may initiate proceedings for modification, termination or review of notices of violation or orders:

6.2.1.a. an operator issued an order pursuant to the provisions of W. Va. Code 22A-1-15;

6.2.1.b. any representative of miners in any mine affected by such a withdrawal order or by any modification or termination of such order;

6.2.1.c. an operator issued a notice of violation pursuant to W. Va. Code 22A-1-15(b), if he/she believes that the time fixed in such notice for the abatement of the violation is unreasonable;

6.2.1.d. any representative of miners in any mine affected by such a notice of violation, if he/she believes that the time fixed in such notice for abatement of the violations is unreasonable;

6.2.1.e. any operator affected by an order issued under W. Va. Code 22A-1-14; or

6.2.1.f. any representative or miners in a mine affected by an order issued under W. Va. Code 22A-1-14.

6.2.2. For purposes of Section 6 of this rule, the mine affected by any order or notice shall be deemed to be the mine at which the violation in question allegedly occurred or at which the imminent danger giving rise to the withdrawal order was allegedly found to exist.

6.3. Initiation of proceedings.

6.3.1. Proceedings for the review of an order issued pursuant to the provisions of W. Va. 22A-1-14 and -15, a modification or termination thereof, a notice of violation issued pursuant to the provisions of W. Va. Code 22A-1-15, or a modification or termination thereof, shall be initiated by those parties entitled to seek review as designated in Section 6.2. of this rule, by filing an application for review.

6.3.2. An application for review shall be filed with the Director within thirty (30) days of receipt by the applicant of the order or notice of violation sought be reviewed or within thirty (30) days of receipt of any modification or termination of a notice of violation or an order where review of such modification or termination of a notice of violation or an order where review of such modification or termination is sought. A copy of the application for review shall be served upon all other parties by the party making application for review.

6.3.3. An operators failure to file an application for review of an order or notice of violation shall not preclude the operator from challenging the fact of violation or raising any other pertinent matter in a proceeding under Sections 4.8. through 4.12. of this rule.

6.4. Answer.

6.4.1. Any party, other than the OMHST, desiring to participate in the proceeding in opposition to the application for review shall file an answer within fifteen (15) days of service of such application for review.

6.5. Contents of application and answer.

6.5.1. An application for review and an answer shall comply with applicable general requirements and shall contain:

6.5.1.a. A short and plain statement of (i) such partys position with respect to each issue of law or fact which the party contends is pertinent to the legality or correctness of the order or notice; and (ii) the relief requested by such party;

6.5.1.b. A statement of whether the party submitting the document requests a public hearing or waives it as provided in Section 5.7. of this rule. Where an answer does not include an unequivocal waiver, a party shall be deemed to have requested a hearing and initial decision.

6.5.2. A copy of the order or notice sought to be reviewed shall be attached to each application for review.

6.6. Proceedings after application; decision and order.

6.6.1. Upon receipt of an application for review, the Director shall cause an investigation of the matter to be made as he or she deems appropriate and shall appoint a Presiding Officer for all proceedings relating to such application.

6.6.2. In the event the applicant has requested a hearing in the application for review, the Presiding Officer shall give notice of and conduct such hearing in accordance with the provisions of Section 5 of this rule. In the event the applicant has waived a hearing in accordance with the provisions of Section 5.7. of this rule, the Presiding Officer shall promptly consider the pleadings and all documents submitted therewith by the parties.

6.6.3. Within sixty (60) days after conclusion of the hearing or after consideration of the pleadings and documents filed therewith in the event a hearing is waived, the Presiding Officer shall issue a written decision and order incorporating therein findings of fact and conclusions of law, vacating, affirming, modifying, extending, or terminating the notice of violation, the order or the modification or termination of such notice or order.

6.6.4. In proceedings where the Presiding Officer is not the Director, the record in the case and the decision and order of the Presiding Officer shall be forwarded to the Director for his/her review. The Director shall approve, alter and approve, or reject the decision and order of the Presiding Officer. In the event the Director rejects the decision and order of the Presiding Officer, the Director shall forthwith prepare a decision and order to replace the decision and order rejected.

6.6.5. A copy of all decisions and orders prepared or approved by the Director shall be served, by certified mail, return receipt requested, upon all parties and each order so served shall become effective upon service.

6.7. Temporary relief; when appropriate.

6.7.1. As part of an initial application for review, or at any time during which an application for review is pending, an applicant may file a written request for temporary relief from any modification or termination of any order, or from any order issued under W. Va. Code 22A-1-15.

6.7.2. If the application for temporary relief is incorporated in the application for review, the applicant shall incorporate in such application a detailed statement giving reasons why temporary relief is appropriate under the circumstances.

6.7.3. If the application for temporary relief is made at any time after the application for review has been filed, the application for temporary relief shall be in the form provided for in Section 3.3. of this rule and shall specify the status of the review proceeding and the reasons why the application for temporary relief is being made. When an application for temporary relief is made after an application for review has been filed, a copy thereof shall be served upon all parties to the proceeding.

6.7.4. The Presiding Officer may, upon consideration of the request for temporary relief, grant such relief as he/she deems appropriate: Provided, That no temporary relief shall be granted unless:

6.7.4.a. a hearing has been held in which all parties were given an opportunity to be heard;

6.7.4.b. the applicant shows that there is substantial likelihood that the final decision and order will be favorable to the applicant; and

6.7.4.c. such relief will not adversely affect the health and safety of miners in the coal mine.

6.7.5. Under no circumstances shall temporary relief be granted in the case of a notice issued under W. Va. Code 22A-1-15(b).

6.7.6. Any temporary relief granted by a Presiding Officer who is not the Director shall be subject to review by the Director.

6.8. Expedition of proceedings.

6.8.1. As part of an initial application for review, or at any time after the filing of an application for review, any party may move the Presiding Officer to expedite the hearing and decision of the case. Such motion shall be in writing and accompanied by supporting documents that establish the partys claim of exigent circumstances warranting expedition.

6.8.2. A copy of all such motions for expedition shall be served upon all other parties by the applicant.

6.8.3. The Presiding Officer shall promptly review the motion and may advance the matter on his/her calendar or expedite the proceedings as he/she deems appropriate.

6.8.4. Where expedited proceedings are requested under this section, periods of time for filing applications, answers or responses, or for holding hearings, as provided elsewhere in this rule, may be waived by agreement of the parties or altered by order of the Presiding Officer.

6.8.5. Any motions granted in this section by a Presiding Officer who is not the Director shall be subject to review by the Director.

W. Va. Code R. § 56-1-7 Rules Applicable to Proceedings Initiated Upon Petition for Declaratory Ruling

7.1. Scope.

7.1.1. This section governs and is applicable to proceedings initiated pursuant to W. Va. Code 29A-4-1 on petition of any interested person for a declaratory ruling to be issued by the OMHST with respect to the applicability to any person, property or statement of facts of any rule or statute enforceable by the MHST. In addition to the rules contained in this section, the general rules of practice before the OMHST contained in Section 3 and the rules relating to hearings held by the OMHST contained in Section 5 are also applicable to such proceedings.

7.1.2. Any interested person may initiate proceedings for a declaratory ruling by the OMHST with respect to the applicability to any person, property or statement of facts of any rule or statute enforceable by it.

7.2. Initiation of proceedings.

7.2.1. Proceedings for a declaratory ruling pursuant to W. Va. Code 29A-4-1 shall be initiated by filing a petition for declaratory ruling with the OMHST.

7.3. Answer.

7.3.1. Any party, other than the Director, desiring to participate in the proceeding in opposition to the petition for declaratory ruling shall file an answer within fifteen (15) days of service of such petition.

7.4. Contents of petition and answer.

7.4.1. A petition for declaratory ruling and an answer shall comply with applicable general requirements and shall contain:

7.4.1.a. A short plain statement of (i) such partys position with respect to each issue of law or fact which the party contends is pertinent to the applicability to a person, property or statement of facts of any rule or statute enforceable by the OMHST; and (ii) the construction of the rule or statute advanced by such party;

7.4.1.b. A statement of whether the party submitting the document request a public hearing or waives such hearing as provided in Section 5.7. of this rule. Where a pleading does not include a request for public hearing, a party shall be deemed to have waived such hearing pursuant to Section 5.7. of this rule.

7.4.2. Documents may be attached to pleadings as exhibits.

7.5. Proceedings after petition; decision and order.

7.5.1. Upon receipt of a petition for declaratory ruling the Director may cause an investigation of the matter to be made as deemed appropriate and may appoint a Presiding Officer for all proceedings relating to such petition. If the Director declines to issue a declaratory ruling in response to such petition, he/she shall notify all parties in writing.

7.5.2. In the event a party has requested a hearing in the petition or an answer, the Presiding Officer shall give notice of and conduct such hearing in accordance with the provisions of Section 5 of this rule. In the event the party has waived a hearing in accordance with the provisions of Subdivision 7.4.1.b. of this rule, the Presiding Officer shall promptly consider the pleadings and all documents submitted therewith by the parties.

7.5.3. Within sixty (60) days after conclusion of the hearing or after consideration of the pleadings and documents filed therewith in the event a hearing is waived, the Presiding Officer shall issue a written decision and order incorporating therein findings of fact and conclusions of law stating the applicability to any person, property or statement of facts of the rule or statute enforceable by the OMHST which is the subject of the petition. Such decision and order shall state whether or not such ruling is binding between the OMHST and the petitioner. Such ruling shall not be binding upon any person other than the petitioner.

7.5.4. In proceedings where the Presiding Officer is not the Director, the record in the case and the decision and order of the Presiding Officer shall be forwarded to the Director for his/her review. The Director shall approve, alter and approve, or reject the decision and order of the Presiding Officer. In the event the Director rejects the decision and order of the Presiding Officer, the Director shall forthwith prepare a decision and order to replace the decision and order rejected.

7.5.5. A copy of all decisions and orders prepared or approved by the Director shall be served, by certified mail, return receipt requested, upon all parties and each order so served shall become effective upon service.

Series 02 Safety Provisions for Clearing Crews

W. Va. Code R. § 56-2-1 General

1.1. Scope. -- This rule governs safety provisions for clearing crews while on mine property in the State of West Virginia. It does not extend to commercial logging operations that may be on mine property and are regulated by OSHA and/or the West Virginia Division of Forestry.

1.2. Authority. -- W. Va. Code 22A-1-6 and 22A-1-38.

1.3. Filing Date. -- April 25, 2024.

1.4. Effective Date. -- April 25, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2029.

1.6. Applicability. -- This rule applies to each mine operator and independent contractor registered with the West Virginia Office of Miners Health, Safety and Training as required by W. Va. Code 22A-2-63.

W. Va. Code R. § 56-2-2 Definitions

2.1. Unless the context in which a word or phrase appears requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2.

2.2. Backcut (felling cut) shall mean the final cut in a felling operation.

2.3. Ballistic Nylon shall mean a nylon fabric of high tensile properties designed to provide protection from lacerations.

2.4. Butt shall mean the bottom of the felled part of a tree.

2.5. Clearing Crew (Land Clearing) shall mean persons employed by the mine operator or independent contractor to clear and grub vegetation in preparation of, or during, mining operations.

2.6. Chock shall mean a block, often wedge shaped, which is used to prevent movement.

2.7. Competent Person shall mean a person designated by the mine operator or independent contractor who has a minimum of 12 months experience in the clear cutting industry and is familiar with the normal hazards associated therein.

2.8. Danger Tree shall mean a standing tree that presents a hazard to employees due to conditions such as, but not limited to, deterioration or physical damage to the root system, trunk, stem or limbs, and the direction and lean of the tree.

2.9. Designated Person shall mean an employee who has the requisite knowledge, training and experience to perform specific duties.

2.10. Director shall mean the Director of the Office of Miners Health, Safety and Training or his or her authorized representative provided for in W. Va. Code 22A-1-3.

2.11. Domino felling shall mean partial cutting of multiple trees which are left standing and then pushed over with a pusher tree.

2.12. Employer shall mean the person or entity that directly employs the clearing crew. It may be an independent contractor or in some cases it may be the production operator.

2.13. Fell (fall) shall mean to cut down trees.

2.14. Feller (faller) shall mean an employee who fells trees.

2.15. Grounded shall mean the placement of a component of a machine on the ground or on a device where it is firmly supported.

2.16. Guarded shall mean covered, shielded, fenced, enclosed, or otherwise protected by means of suitable enclosures, covers, casings, shields, troughs, railings, screens, mats, or platforms, or by location, to prevent injury.

2.17. Independent Contractor shall mean any firm, corporation, partnership or individual that contracts to perform services or construction at a coal mine.

2.18. Limbing shall mean to cut branches off felled trees.

2.19. Lodged Tree (hung tree) shall mean a tree leaning against another tree or object which prevents it from falling to the ground.

2.20. Machine shall mean any vehicle (such as a car, bus, truck, trailer, or semi-trailer owned, leased or rented by the employer that is used for transportation of employees or movement of material), or any piece of stationary or mobile equipment having a self-contained power plant that is operated off-road and used for the movement of material. Machines include, but are not limited to, tractors, skidders, front-end loaders, scrapers, graders, bulldozer and mechanical felling devices, such as tree shears and feller bunchers. Machines do not include airplanes or aircraft (e.g., helicopters).

2.21. Production Operator shall mean any owner, lessee or other person who operates, controls or supervisors at a coal mine.

2.22. Rated Capacity shall mean the maximum load a system, vehicle, machine, or piece of equipment was designed by the manufacturer to handle.

2.23. Root Wad shall mean the ball of a tree root and dirt that is pulled from the ground when a tree is uprooted.

2.24. Serviceable Condition shall mean a state or ability of a tool, machine, vehicle or other device to operate as it was intended by the manufacturer to operate.

2.25. Slope (grade) shall mean the increase or decrease in altitude over a horizontal distance expressed as a percentage. For example, a change of altitude of 20 feet (6 m) over a horizontal distance of 100 feet (30 m) is expressed as a 20 percent slope.

2.26. Snag shall mean any standing dead tree or portion thereof.

2.27. Spring Pole shall mean a tree, segment of a tree, limb, or sapling, which is under stress, or tension due to the pressure or weight of another object.

2.28. Tie Down shall mean chain, cable, steel strips or fiber webbing and binders attached to a truck, trailer or other conveyance as a means to secure loads and to prevent them from shifting or moving when they are being transported.

2.29. Undercut shall mean a notch cut in a tree to guide the direction of the tree fall and to prevent splitting or kickback.

2.30. Winching shall mean the winding of cable or rope onto a spool or drum.

W. Va. Code R. § 56-2-3 Personal Protective Equipment

3.1. The employer shall assure that personal protective equipment, including any personal protective equipment provided by an employee, is maintained in a serviceable condition.

3.2. The employer shall assure that personal protective equipment, including any personal protective equipment provided by an employee, is inspected before initial use during each work shift. Defects or damage shall be repaired or the unserviceable personal protective equipment shall be replaced before work is commenced.

3.3. The employer shall provide, at no cost to the employee, and assure that each employee handling wire rope wears, hand protection which provides adequate protection from puncture wounds, cuts and lacerations.

3.4. The employer shall provide, at no cost to the employee, and assure that each employee who operates a chain saw wears leg protection constructed with cut-resistant material, such as ballistic nylon. The leg protection shall cover the full length of the thigh to the top of the boot on each leg to protect against contact with a moving chain saw. Exception: This requirement does not apply when an employee is working as a climber if the employer demonstrates to the Director that a greater hazard is posed by wearing leg protection in the particular situation, or when an employee is working from a vehicular mounted elevating and rotating work platform.

3.5. The employer shall assure that each employee wears foot protection, such as heavy-duty logging boots that are waterproof or water repellent, cover and provide support to the ankle. The employer shall assure that each employee who operates a chain saw wears foot protection that is constructed with cut-resistant material, which will protect the employee against contact with a running chain saw. Sharp, calk-soled boots or other slip-resistant type boots may be worn where the employer demonstrates to the director that they are necessary for the employees job, the terrain, the timber type, and the weather conditions, provided that foot protection otherwise required by West Virginia Surface Mine Rule 56 CSR § 3.47 is met.

3.6. The employer shall provide, at no cost to the employee, and assure that each employee who works in an area where there is potential for head injury from falling or flying objects wears head protection as stated in West Virginia Surface Mine Rule 56 CSR § 3.47.

3.7. The employer shall provide, at no cost to the employee, and assure that each employee wears the following:

3.7.1. Eye protection where there is potential for eye injury due to falling or flying objects, face protection where there is potential for facial injury such as, but not limited to, operating a chipper.

3.7.2. Logger-type mesh screens may be worn by employees performing chain-saw operations. The employee does not have to wear a separate eye protection device where face protection covering both the eyes and face is worn.

W. Va. Code R. § 56-2-4 Emergency Provisions

4.1. Each worksite shall have 1 first-aid kit for every 3 persons located at each worksite and equipped with items listed in Appendix A.

4.2. In accordance with West Virginia Surface Mine Rule 56 CSR 3.48.3, emergency arrangements shall be provided for the mine site.

4.3. Each worksite in accordance with the West Virginia Surface Mine Rule 56 CSR 3.48.4 shall be provided with emergency communications.

W. Va. Code R. § 56-2-5 Seat Belts

5.1. Seat belts - For each vehicle or machine (equipped with rollover protective structure or falling object protective structure or overhead guards), including any vehicle or machine provided by an employee, the employer should assure:

5.1.1. That a seat belt is provided for each vehicle or machine operator;

5.1.2. That each employee uses the available seat belt while operating the vehicle or machine;

5.1.3. That each employee securely and tightly fastens the seat belt to restrain the employee within the vehicle or machine cab;

5.1.4. That each machine seat belt must meet the manufacturers specifications;

5.1.5. That seat belts are not removed from any vehicle or machine. The employer shall replace each seat belt which has been removed from any vehicle or machine that was equipped with seat belts at the time of manufacture; and

5.1.6. That each seat belt is maintained in a serviceable condition.

W. Va. Code R. § 56-2-6 Environmental Conditions

6.1. All work shall terminate and each employee shall move to a place of safety when environmental conditions, such as but not limited to, electrical storms, strong winds which may affect the fall of a tree, heavy rain or snow, extreme cold, dense fog, fires, mudslides, and darkness, create a hazard for the employee in the performance of the job.

W. Va. Code R. § 56-2-7 Work Areas

7.1. Employees shall be spaced and the duties of each employee shall be organized so the actions of 1 employee will not create a hazard for any other employee.

7.2. Work areas shall be assigned so that trees cannot fall into an adjacent occupied work area. The distance between adjacent occupied work areas shall be at least 2 tree lengths of the trees being felled. The distance between adjacent occupied work areas shall reflect the degree of slope, the density of the growth, the height of the trees, the soil structure and other hazards reasonably anticipated at that work site. A distance of greater than 2 tree lengths shall be maintained between adjacent occupied work areas on any slope where rolling or sliding of trees is reasonably foreseeable.

7.3. Each employee performing land clearing on mine property shall work in a position or location that is within visual or audible contact with another employee.

7.4. The employer shall account for each employee at the end of each work shift.

W. Va. Code R. § 56-2-8 Signaling and Signal Equipment

8.1. Hand signals and audible contact, such as but not limited to, whistles, horns, or radios, shall be utilized whenever noise, distance, restricted visibility, or other factors prevent clear understanding of normal voice communications between employees.

8.2. Engine noise, such as from a chain saw, is not an acceptable means of signaling.

8.3. Only a designated person shall give signals, except in an emergency.

W. Va. Code R. § 56-2-9 Overhead Electric Lines

9.1. Clearing operations near overhead electric lines shall be done in accordance with the requirements of the West Virginia Surface Mine Rule 56 CSR § 3.37.

9.2. The employer shall notify the power company immediately if a felled tree makes contact with any power line. Each employee shall remain clear of the area until the power company advises that there are no electrical hazards.

W. Va. Code R. § 56-2-10 Flammable and Combustible Liquids

10.1. Flammable and combustible liquids shall be stored, handled, transported, and used in accordance with the requirements the West Virginia Surface Mine Rule 56 CSR § 3.45.2 and 56 CSR § 3.45.3.

10.2. Flammable and combustible liquids shall not be transported in the driver compartment or in any passenger-occupied area of a machine or vehicle.

10.3. Each machine, vehicle and portable powered tool shall be shut off during fueling. Diesel-powered machines and vehicles may be fueled while they are at idle, provided that continued operation is intended and that the employer follows safe fueling and operating procedures.

10.4. Flammable and combustible liquids, including chain-saw and diesel fuel, may be used to start a fire, provided the employer assures that in the particular situation its use does not create a hazard for an employee.

W. Va. Code R. § 56-2-11 Explosives and Blasting Agents

11.1. If at any time explosives and blasting agents are used in clearing operations they shall be secured and safely stored, handled, transported, and used in accordance with the requirements of the West Virginia Surface Mine Rule 56 CSR § 3.32.3 and Department of Environmental Protection, Office of Explosives and Blasting Rule 199 CSR § 1.

W. Va. Code R. § 56-2-12 Hand and Portable Powered Tools General Requirements

12.1. The employer shall assure that each hand and portable powered tool, including any tool provided by an employee, is maintained in serviceable condition. The employer shall assure that each tool, including any tool provided by an employee, is inspected before initial use during each work shift. At a minimum, the inspection shall include the following:

12.1.1. Handles and guards to assure that they are sound, tight-fitting, properly shaped, free of splinters and sharp edges, and in place;

12.1.2. Controls, to assure proper function;

12.1.3. Chain-saw chains, to assure proper adjustment;

12.1.4. Chain-saw mufflers, to assure that they are operational and in place;

12.1.5. Chain brakes and nose shielding devices, to assure that they are in place and function properly;

12.1.6. Heads of shock, impact-driven and driving tools, to assure that there is no mushrooming;

12.1.7. Cutting edges, to assure that they are sharp and properly shaped; and

12.1.8. All other safety devices, to assure that they are in place and function properly.

12.2. The employer shall assure that each tool is used only for purposes for which it has been designed.

12.3. When the head of any shock, impact-driven or driving tool begins to chip, it shall be repaired or removed from service.

12.4. The cutting edge of each tool shall be sharpened in accordance with manufacturers specifications whenever it becomes dull during the work shift.

12.5. Each tool shall be stored in the provided location when not being used at a work site.

12.6. Racks, boxes, holsters or other means shall be provided, arranged and used for the transportation of tools so that a hazard is not created for any vehicle operator or passenger.

W. Va. Code R. § 56-2-13 Chain Saws

13.1. Each chain saw shall be equipped with an operable chain brake which shall meet the requirements of the manufacturer.

13.2. Each gasoline-powered chain saw shall be equipped with a continuous pressure throttle control system, which will stop the chain when pressure on the throttle is released.

13.3. The chain saw shall be operated and adjusted in accordance with the manufacturers instructions.

13.4. The chain saw shall be fueled at least 10 feet (3 m) from any open flame or other source of ignition.

13.5. The chain saw shall be started at least 10 feet (3 m) from the fueling area.

13.6. The chain saw shall be started on the ground or where otherwise firmly supported. Drop starting a chain saw is prohibited.

13.7. The chain saw shall be started with the chain brake engaged.

13.8. The chain saw shall be held with the thumbs and fingers of both hands encircling the handles during operation unless the employer demonstrates to the director that a greater hazard is posed by keeping both hands on the chain saw in that particular situation.

13.9. The chain-saw operator shall be certain of footing before starting to cut. The chain saw shall not be used in a position or at a distance that could cause the operator to become off-balance, to have insecure footing, or to relinquish a firm grip on the saw.

13.10. Prior to felling any tree, the chain-saw operator shall clear away brush or other potential obstacles, which might interfere with cutting the tree or using the retreat path.

13.11. The chain saw shall not be used to cut directly overhead.

13.12. The chain saw shall be carried in a manner that will prevent operator contact with the cutting chain and muffler.

13.13. The chain saw shall be shut off or the throttle released before the feller starts his retreat.

13.14. The chain saw shall be shut down or the chain brake shall be engaged whenever a saw is carried further than 50 feet (15.2 m). The chain saw shall be shut down or the chain brake shall be engaged when a saw is carried less than 50 feet if conditions such as, but not limited to, the terrain, underbrush and slippery surfaces, may create a hazard for an employee.

W. Va. Code R. § 56-2-14 Machines, Vehicles, and Mobile Equipment

14.1. General Requirements.

14.1.1. The employer shall assure that each machine including any machine provided by an employee is maintained in serviceable condition.

14.1.2. The employer shall assure that each machine including any machine provided by an employee is inspected before initial use during each work shift. Defects or damage shall be repaired on the unserviceable machine or shall be replaced before work is commenced.

14.1.3. The employer shall assure that operating and maintenance instructions are available for each machine in the area where the equipment is being operated. Each machine operator and maintenance employee shall comply with the operating and maintenance instructions.

14.2. Machine Operation.

14.2.1. The machine shall be started and operated only by a designated person.

14.2.2. The rated capacity of any machine shall not be exceeded.

14.2.3. To maintain stability, the machine must be operated within the limitations imposed by the manufacturer as described in the operating and maintenance instructions for that machine on any slope which is greater than the maximum slope recommended by the manufacturer.

14.2.4. Before starting or moving any machine, the operator shall determine that no employee is in the path of the machine.

14.2.5. The machine shall be operated only from the operators station or as otherwise recommended by the manufacturer.

14.2.6. The machine shall be operated at such a distance from employees and other machines such that operation will not create a hazard for an employee.

14.2.7. No employee other than the operator shall ride on any mobile machine unless seating, seat belts and other protection equivalent to that provided for the operator are provided.

14.2.8. No employee shall ride on any load.

14.2.9. Before the operator leaves the operators station of a machine, it shall be secured as follows:

14.2.9.a. The parking brake or brake locks shall be applied.

14.2.9.b. The transmission shall be placed in the manufacturers specified park position; and

14.2.9.c. Each moving element such as, but not limited to blades, buckets, saws, and shears shall be lowered to the ground or otherwise secured.

14.2.10. If a hydraulic or pneumatic storage device can move the moving elements such as, but not limited to, blades, buckets, saws and shears, after the machine is shut down, the pressure or stored energy from the element shall be discharged as specified by the manufacturer.

14.2.11. The rated capacity of any vehicle transporting a machine shall not be exceeded.

14.2.12. The machine shall be loaded, secured, and unloaded so that it will not create a hazard for any employee.

14.2.13. For safe operation of equipment on slopes the operator shall follow the manufacturers specifications and limitations of the mobile equipment, wire ropes, and all attachments.

14.2.13.a. The machine being used to assist a dozer, or other machines working on slopes shall be of proper size and strength to provide adequate anchorage. The machine providing anchorage shall be positioned to provide maximum stability.

14.2.13.b. The winch line assembly shall be of proper size and strength, and properly maintained to provide safety for all machines.

14.2.13.b.1. Winch cables used by machines working on slopes shall be of proper size according to manufacturers specifications.

14.2.13.b.2. Winch cables shall be secured to the winch assembly drum according to the manufacturers specifications.

14.2.13.b.3. A minimum of 3 wraps of winch cable shall remain on the drum at all times.

14.2.13.b.4. The live-end connection device used to secure the two machines together shall be of a design that minimizes the possibility of accidental disconnection. The connection device shall be of the proper strength for the duties performed and maintained in safe condition according to manufacturers specifications.

14.2.13.b.5. All winch cables shall be securely fastened to the live-end connection device by the proper number of wire-rope clamps, or properly wedged according to the manufacturers specifications.

14.2.13.b.6. All components of the winch line assembly shall be inspected by the machine operator periodically during daily operations.

14.2.13.c. Constant communications either audible or visual shall be maintained between machine operators while working on slopes.

14.3. Protective Structures.

14.3.1. Each tractor, skidder and mechanical felling device, such as tree shears or feller-buncher, placed into initial service after February 9, 1995, shall be equipped with falling object protective structure or rollover protective structure. The employer shall replace falling object protective structure or rollover protective structure which have been removed from any machine. Exception: This requirement does not apply to machines, which are capable of 360-degree rotation. Rollover protective structure shall be tested, installed, and maintained in serviceable condition.

14.3.2. Each machine shall have rollover protective structure or falling object protective structure tested, installed, and maintained in accordance with manufacturers specifications.

14.3.3. Each protective structure shall be of a size that does not impede the operators normal movements.

14.3.4. The overhead covering of each cab shall be of solid material and shall extend over the entire canopy.

14.3.5. Each machine manufactured after August 1, 1996, shall have a cab that is fully enclosed with mesh material with openings no greater than 2 inches (5.08 cm) at its least dimension. The cab may be enclosed with other material(s) where the employer demonstrates to the Director such material(s) provides equivalent protection and visibility. Exception: Equivalent visibility is not required for the lower portion of the cab where there are control panels or similar obstructions in the cab, or where visibility is not necessary for safe operation of the machine.

14.3.6. Each machine manufactured on or before August 1, 1996, shall have a cab, which meets the requirements specified in the above paragraph or a protective canopy for the operator which meets the following requirements:

14.3.6.a. The protective canopy shall be constructed to protect the operator from injury due to falling trees, limbs, saplings or branches which might enter the compartment side areas and from snapping winch lines or other objects.

14.3.6.b. The lower portion of the cab shall be fully enclosed with solid material, except at entrances, to prevent the operator from being injured from obstacles entering the cab.

14.3.6.c. The upper rear portion of the cab shall be fully enclosed with open mesh material with openings of such size as to reject the entrance of an object larger than 2 inches in diameter. It shall provide maximum rearward visibility; and

14.3.6.d. Open mesh shall be extended forward as far as possible from the rear corners of the cab sides so as to give the maximum protection against obstacles, branches, etc., entering the cab area.

14.3.6.e. The enclosure of the upper portion of each cab shall allow maximum visibility.

14.3.6.f. When transparent material is used to enclose the upper portion of the cab, it shall be made of safety glass or other material that the employer demonstrates to the director provides equivalent protection and visibility.

14.3.6.g. Transparent material shall be kept clean to assure operator visibility.

14.3.6.h. Transparent material that may create a hazard for the operator, such as but not limited to, cracked, broken or scratched safety glass shall be replaced.

14.3.6.i. Deflectors shall be installed in front of each cab to deflect whipping saplings and branches. Deflectors shall be located so as not to impede visibility and access to the cab.

14.3.6.j. The height of each cab entrance shall be at least 52 inches (1.3 meters) from the floor of the cab.

14.3.7. Each forklift shall be equipped with an overhead guard and maintained in accordance with the manufacturers specifications.

14.4. Machine Access.

14.4.1. Machine access systems shall be installed and maintained in accordance with the manufacturers specifications. Access systems shall be provided for each machine where the operator or any other employee must climb onto the machine to enter the cab or to perform maintenance.

14.4.2. Each machine cab shall have a second means of egress. (This requirement does not pertain to skid steer loaders.)

14.4.3. Walking and working surfaces of each machine and machine workstation shall have a slip resistant surface to assure safe footing.

14.4.4. The walking and working surface of each machine shall be kept free of waste, debris and any other material, which might result in fire, slipping, or falling.

14.5. Exhaust Systems.

14.5.1. The exhaust pipes on each machine shall be located so exhaust gases are directed away from the operator. The exhaust pipes on each machine shall be mounted or guarded to protect each employee from accidental contact.

14.5.2. The exhaust pipes shall be equipped with spark arresters. (Engines equipped with turbochargers do not require spark arresters).

14.5.3. Each machine muffler provided by the manufacturer, or their equivalent, shall be in place at all times the machine is in operation.

14.6. Brakes.

4.6.1. Service brakes shall be sufficient to stop and hold each machine and its rated load capacity on the slopes over which it is being operated.

14.6.2. Each machine placed into initial service on or after September 8, 1995 shall also be equipped with: back-up or secondary brakes that are capable of stopping the machine regardless of the direction of travel or whether the engine is running; and parking brakes that are capable of continuously holding a stopped machine stationary.

14.7. Guarding.

14.7.1. Each machine shall be equipped with guarding to protect employees from exposed moving elements, such as but not limited to, shafts, pulleys, belts on conveyors, and gears.

14.7.2. Each machine used for limbing and chipping shall be equipped with guarding to protect employees from flying wood chunks, chips, bark, limbs and other material.

14.7.3. The guarding on each machine shall be in place at all times the machine is in operation.

14.8. Equipment.

14.8.1. The employer shall assure that each machine used to perform any clearing operation is maintained in safe condition.

14.8.2. The employer shall assure that each machine used to perform any clearing operation is inspected before initial use during each work shift. Defects shall be recorded on a form approved by the Director and shall be signed by the person performing the examination. Imminent danger equipment defects shall be corrected before the equipment is put into operation.

14.8.3. The employer shall assure that operating and maintenance instructions are available in each machine. Each machine operator and maintenance employee shall comply with the operating and maintenance instructions.

14.8.4. Mounting steps and handholds shall be provided for each machine wherever it is necessary to prevent an employee from being injured when entering or leaving the machine.

14.8.5. The seats of each machine shall be securely fastened.

W. Va. Code R. § 56-2-15 Tree Felling

15.1. General requirements.

15.1.1. Trees shall not be felled in a manner that may create a hazard for an employee, such as but not limited to, striking a rope, cable, power line, or machine.

15.1.2. The immediate supervisor shall be consulted when unfamiliar or unusually hazardous conditions necessitate the supervisors approval before cutting is commenced.

15.1.3. While manual felling is in progress, no machine shall be operated within 2 tree lengths of trees being manually felled. Exception: This provision does not apply to machines performing tree-pulling operations.

15.1.4. No employee shall approach a feller closer than 2 tree lengths of trees being felled until the feller has acknowledged that it is safe to do so, unless the employer demonstrates to the Director that a team of employees is necessary to manually fell a particular tree.

15.1.5. No employee shall approach a mechanical felling operation closer than 2 tree lengths of the trees being felled until the machine operator has acknowledged that it is safe to do so.

15.1.6. Each danger tree shall be felled, removed or avoided. Each danger tree, including lodged trees and snags, shall be felled or removed using mechanical or other techniques that minimize employee exposure before work is commenced in the area of the danger tree. If the danger tree is not felled or removed, it shall be marked and no work shall be conducted within 2 tree lengths of the danger tree unless the employer demonstrates to the Director that a shorter distance will not create a hazard for an employee.

15.1.7. Each danger tree shall be carefully checked for signs of loose bark, broken branches and limbs or other damage before they are felled or removed. Accessible loose bark and other damage that may create a hazard for an employee shall be removed or held in place before felling or removing the tree.

15.1.8. Felling on any slope where rolling or sliding of trees or is reasonably foreseeable shall be done uphill from, or on the same level as, previously felled trees.

15.1.9. Domino felling of trees is prohibited. (The definition of domino felling does not include the felling of a single danger tree by felling another single tree into it.)

W. Va. Code R. § 56-2-16 Manual Tree Felling

16.1. Before felling is started, the feller shall plan and clear a retreat path. The retreat path shall extend diagonally away from the expected felling line unless the employer demonstrates to the Director that such a retreat path poses a greater hazard than an alternate path. Once the back cut has been made the feller shall immediately move a safe distance away from the tree on the retreat path. Before each tree is felled, conditions such as, but not limited to, snow and ice accumulation, the wind, the lean of tree, dead limbs, and the location of other trees, shall be evaluated by the feller and precautions taken so a hazard is not created for an employee.

16.2. Each tree shall be checked for accumulations of snow and ice. Accumulations of snow and ice that may create a hazard for an employee shall be removed before felling is commenced in the area or the area shall be avoided.

16.3. When a spring pole or other tree under stress is cut, no employee other than the feller shall be closer than 2 tree lengths when the stress is released.

16.4. An undercut shall be made in each tree being felled unless the employer demonstrates to the Director that felling the particular tree without an undercut will not create a hazard for an employee. The undercut shall be of a size so the tree will not split and will fall in the intended direction.

16.5. A backcut shall be made in each tree being felled. The backcut shall leave sufficient hinge wood to hold the tree to the stump during most of its fall so that the hinge is able to guide the trees fall in the intended direction. The backcut shall not penetrate into the predetermined hinge area.

16.6. The backcut shall be above the level of the horizontal facecut in order to provide an adequate platform to prevent kickback.

16.7. Notches shall be used on all trees and trunks over 5 inches or (12.5cm) in diameter at breast height.

W. Va. Code R. § 56-2-17 Limbing and Bucking

17.1. Limbing and bucking on any slope where rolling or sliding of trees or is reasonably foreseeable shall be done on the uphill side of each tree.

17.2. Before bucking or limbing wind-thrown trees, precautions shall be taken to prevent the root wad, butt, or trees from striking an employee. These precautions include, but are not limited to, chocking or moving the tree to a stable position.

W. Va. Code R. § 56-2-18 Chipping (in-woods locations)

18.1. Chipper access covers or doors shall not be opened until the drum or disc is at a complete stop.

18.2. Infeed and discharge ports shall be guarded to prevent contact with the disc, knives, or blower blades.

18.3. The chipper shall be shut down, locked and tagged out when an employee performs any servicing or maintenance.

18.4. Detached trailer chippers shall be chocked during usage on any slope where rolling or sliding of the chipper is reasonably foreseeable.

W. Va. Code R. § 56-2-19 Pre-shift and On-shift Examination

19.1. Prior to the beginning of any shift a designated competent person shall visit and carefully examine all work areas for dangerous conditions. Upon completion of the examination, the competent person shall record the results in a book prescribed by the Director, before persons enter the work area. This book shall be kept at the work area and made available for inspection by an authorized representative of the Director.

19.2. The designated competent person shall examine all work areas under his supervision for hazards at least once every 4 hours during each working shift, or more often if necessary for safety. The competent person shall record the results of the on shift examination in a book prescribed by the Director.

19.3. Should the competent person find a place to be in a dangerous condition, they shall not leave the place until it has been made safe, or shall remove the persons working therein until the place is made safe.

19.4. The competent person shall also record any dangerous conditions and practices found during the examination in a book provided for that purpose.

W. Va. Code R. § 56-2-20 Safety Meetings

20.1. The employer shall have weekly safety meetings with all employees which shall provide training in the working practices and conditions at the work area and rules applicable thereto.

W. Va. Code R. § 56-2-21 Training

21.1. The employer shall provide training for each employee, including supervisors, at no cost to the employee.

21.2. As soon as possible but not later than 90 days from the effective date of this rule all employees shall receive a minimum of 16 hours of training. This training shall consist of:

21.2.1. Eight hours of task specific safety (clear cutting).

21.2.2. Eight hours of first aid, CPR, and emergency procedures.

21.3. Before any new employee begins work, they shall receive the 16 hours of training described in Section 21.1.

21.4. The employer shall provide annual continuing training of at least 8 hours covering the subjects listed in subsection 21.2. for each employee, including supervisors, at no cost to the employee.

APPENDIX A

First Aid Requirements The contents of the first-aid kit listed should be adequate for small work sites, consisting of approximately two to three employees. When larger operations or multiple operations are being conducted at the same location, additional first-aid kits should be provided at the work site or additional quantities of supplies should be included in the first-aid kits:

Automated external defibrillator (AED)

Gauze pads (at least 4 x 4 inches)

Two large gauze pads (at least 8 x 10 inches)

Box adhesive bandages (band-aids)

One package gauze roller bandage at least 2 inches wide Two triangular bandages Wound cleaning agent such as sealed moistened towelettes Scissors At least 1 blanket Tweezers Adhesive tape Latex gloves Resuscitation equipment such as resuscitation bag, airway, or pocket mask Two elastic wraps Splint Directions for requesting emergency assistance

Series 04 Rule Governing Protective Clothing and Equipment

W. Va. Code R. § 56-4-1 General

1.1. Scope. -- This rule pertains to the implementation of provisions of W. Va. Code 22A-2-55, relating to the regulation of protective clothing and equipment worn by miners underground by the Office of Miners Health, Safety and Training.

1.2. Authority. -- W. Va. Code 22A-2-55(j).

1.3. Filing Date. -- April 24, 2024.

1.4. Effective Date. -- April 24, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2029.

W. Va. Code R. § 56-4-2 Preamble

2.1. Purpose The purpose of this rule series is to protect the health and safety of this states coal miners by requiring minimum standards for the protective clothing and equipment worn by each underground miner. Coal mine operators are required to provide each underground miner with certain protective equipment and this rule details the requirements for such protective equipment. In implementing such mandate, it is recognized that different types of protective equipment may be developed to satisfy the minimum requirements for protective equipment for each mine, depending upon the number of employees of the particular mine, the location of the particular mine, the physical features of the particular mine, and technological advances.

2.2. Escape is the primary procedure to be used by miners in the event of an emergency underground. Self-contained self-rescue devices (SCSRs) are intended to isolate miners from hazardous gases and provide breathable air while attempting to escape the mine during an emergency. In the event that escape-ways are impassable, emergency shelters/chambers provide a source of breathable air for miners unable to escape from the mine. Wireless emergency communication and tracking/locating devices are intended to assist in exchanging information between escaping miners, between said miners and those on the surface following an accident, and to assist in locating miners to aid their escape. In addition to the purposes stated above, the intended purpose of this rule is to establish a regulatory regime enabling the advancement of mine safety and health technologies and the proper implementation of these technologies in West Virginias underground mines.

W. Va. Code R. § 56-4-3 Definitions

3.1. Unless the context in which a word or phrase appears requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2.

3.2. Code shall mean the Code of West Virginia, 1931, as amended.

3.3. Director shall mean the Director of the Office of Miners Health, Safety and Training.

3.4. Operator shall mean any firm, corporation, partnership, or individual operating any coal mine or part thereof, or engaged in the construction or maintenance of any facility associated with a coal mine, and shall include any independent contractor at a coal mine.

3.5. Independent Contractor shall mean any firm, corporation, partnership or individual that contracts to perform services or construction at a coal mine, excluding mine vendors, office equipment suppliers, service or delivery personnel; provided they or their employees do not go underground.

3.6. Self-Contained Self-Rescuer (SCSR) shall mean a type of closed-circuit self-contained breathing apparatus or its equivalent approved by the Mine Safety and Health Administration of the United States Department of Labor for the purpose of isolating a miner from hazardous gases and providing breathable air to aid in an escape.

3.7. SCSR Storage Cache shall mean a non-combustible container constructed to withstand normal mine conditions, protect a number of SCSRs, and allow easy access for inspection of the SCSRs and easy access for miners who are escaping.

3.8. Emergency Shelter/Chamber shall mean an enclosed space located within 1,000 feet of the nearest working face with all sides made from man-made materials whose function is to protect the occupants from hazardous gases and provide breathable air in the event escape is not possible.

3.9. Emergency communications shall mean the transmission and reception of voice, data and/or information regarding an unexpected event requiring immediate action.

3.10. Wireless shall mean allowing individual communications by a miner through a mine communication and tracking/locating system without a physical connection.

3.11. Communication device shall mean equipment that is a component of an integrated mine communication and tracking/locating system for purposes of emergency communication.

3.12. Physical location shall mean the position of a miner in relation to a tracking device at a known location to enhance escape and/or rescue.

3.13. Tracking/location shall mean knowing the physical location of miners at the moment of an accident and as escape progresses if the tracking/location system being used is still functional.

3.14. Tracking/locating device shall mean equipment that is a component of an integrated mine communication and tracking/locating system for the purpose of providing the physical location of a miner during an emergency.

3.15. Apparent-Temperature shall mean a heat stress indicator that considers the effects of temperature and humidity.

W. Va. Code R. § 56-4-4 Mine Safety Technology Task Force

4.1. Within 7 calendar days of the effective date of this rule, the Director shall establish a Mine Safety Technology Task Force to provide technical and other assistance related to the implementation of the new technological requirements set forth in W. Va. Code 22A-2-55. The task force shall be comprised of 3 miners from the major employee organization representing coal miners in this state and 3 miners from the major trade association representing underground coal operators in this state. All actions of the task force shall be by unanimous vote.

4.2. The task force, working in conjunction with the Director, shall study technology and technology usage issues related to the implementation, compliance and enforcement of the safety requirements covered under W. Va. Code R. 56-4. Additionally, the task force may study related safety measures as requested by the Director. In conducting its study, the task force shall, where possible, consult with, among others, mine engineering and mine safety experts, technology experts and relevant state and federal regulatory personnel.

4.3. The Director, or his/her designee, shall preside over all meetings of the working group.

4.4. Prior to adopting or modifying any technological safety requirement pursuant to W. Va. Code R. 56-4, the Director shall request recommendations from the task force and shall consider its written report on the subject in making any determination.

4.5. The Director shall convene the Mine Safety Technology Task Force no less than once per month.

W. Va. Code R. § 56-4-5 Self-Contained Self-Rescue Devices Provided for Escape from Mines

5.1. Each miner working underground shall be provided an SCSR in accordance with the provisions of W. Va. Code 22A-2-55(f). In addition, the operator shall provide storage caches of additional SCSRs throughout the mine in accordance with a Storage Cache Plan approved by the Director pursuant to W. Va. Code R. 56-4-6.

5.2. Each SCSR shall be approved to provide at least 60 minutes of breathable air by the Mine Safety and Health Administration (MSHA) of the United States Department of Labor: provided, that nothing contained herein shall preclude an operator from providing each miner working underground an SCSR with an MSHA approved rating less than 60 minutes of breathable air that is adequate to provide for twice the travel time as defined in the chart in W. Va. Code R. 56-4-6 to the nearest storage cache, as defined in W. Va. Code R. 56-4-6, or an escape facility.

5.3. Each operator shall provide training in the proper use of SCSRs in simulated emergency situations in all required SCSR training: provided, that such simulations may be conducted on the surface. Training shall be in compliance with all manufacturers requirements and shall include, but not be limited to: the risks of toxic gases; manufacturers’ required daily inspections; donning and starting the SCSR; limitations of the SCSR; ways to maximize duration of the unit; changing between SCSRs; communicating without removing the mouthpiece; importance and use of goggles; and how to know if the device has failed and what to do if it does fail.

5.4. Pursuant to W. Va. Code 22A-1-23, operators and independent contractors shall report to the Director all SCSRs in-service and list the following: manufacturer; model; serial number; mine/contractor ID#; service dates; and results of required inspections. This information shall be submitted electronically as defined by the Director, updated quarterly and will include information on any units removed from service along with the reason(s).

5.5. The Director shall compile and analyze the results of this information and distribute a report within 30 days by posting the report on the MHS&T web page: https://minesafety.wv.gov.

5.6. The Director shall establish a program to periodically evaluate the quality of SCSRs in-service in West Virginia mines through collection and testing of a statistically significant number of units of differing ages and representative of models used West Virginia mines. The results of such evaluations will be published on the MHS&T web page: https://minesafety.wv.gov.

W. Va. Code R. § 56-4-6 Self-Contained Self-Rescue Device Storage Cache Plan

6.1. Within 30 calendar days of the effective date of this rule, all operators of all mines shall submit an SCSR Storage Cache Plan for approval by the Director in accordance with W. Va. Code 22A-1-36. The design, development, submission, and implementation of the SCSR Storage Cache Plan shall be the responsibility of the operator of each mine.

6.2. Operators shall revise all approved SCSR storage cache plans and submit those to the Director no later than 60 days after any amendments to this rule become final.

6.3. Within 30 calendar days after submission of the SCSR Storage Cache Plan, the Director shall either approve the plan as submitted, or shall reject and return the plan to the operator for modification and resubmission, stating in detail the reason(s) for such rejection. If the plan is rejected, the Director shall give the operator a reasonable length of time, not to exceed 15 calendar days, to modify and resubmit such plan.

6.4. In developing the SCSR Storage Cache Plan, the operator shall take into consideration the following: the need for SCSRs in the accidents described in W. Va. Code 22A-2-66; the number of employees of the particular mine; the location of the particular mine; the physical features of the particular mine; and any other aspect of the particular mine the operator deems relevant to the development of the SCSR Storage Cache Plan.

6.5. Each SCSR Storage Cache shall be housed in a container constructed to protect the SCSRs from normal operational damage; be made of a material that is non-combustible; shall be easy to open during an emergency escape; be noted on the escape-way map required by W. Va. Code 22A-2-1; and included in the mine rescue plan required pursuant to W. Va. Code 22A-1-35(q).

6.6. One SCSR storage cache shall be placed at a readily available location within 500 feet of the nearest working face in each working section of the mine and each active construction or rehabilitation site. Distances greater than 500 feet, but not to exceed 1,000 feet, are permitted upon approval of the Director. However, where miners are provided with personal SCSRs that are MSHA rated for less than 60 minutes, travel to these storage caches shall not exceed 5 minutes as determined by the height/travel time table as specified in W. Va. Code R. 56-4-6.9.2.

6.7. Each of the storage caches specified in Section 6.6 shall contain 2 SCSRs that will provide at least 60 minutes of MSHA rated duration per unit for each miner. When each miner carries an SCSR that is MSHA rated for less than 60 minutes, the storage cache shall hold devices equivalent to 3 60-minute MSHA rated SCSRs for each miner. The total number of SCSRs in a stationary storage cache location will be based on the total number of miners reasonably likely to be in that area. During crew changes involving a mantrip at a working section or an active construction or rehabilitation site, a number of mantrip cached 60 minute or greater MSHA rated SCSRs equal to the total number of miners reasonably likely on the mantrip shall satisfy the total number of SCSRs required for such personnel.

6.8. Operators shall ensure that storage caches required in Section 6.6 contain: an escape kit containing a hammer; a tagline; a supply of chemical light sticks; and an escape-way map required by W. Va. Code 22A-2-1.

6.9. Additional storage caches of 60 minute or longer MSHA rated SCSRs shall also be placed in readily available locations throughout the remainder of the mine as follows:

6.9.1. Beginning at the storage cache located at the working section or active construction or rehabilitation site and beltlines, pumping and bleeder areas, and continuing to the surface or nearest escape facility leading to the surface pursuant to W. Va. Code 22A-2-60, the operator shall station additional storage caches of 60 minute or longer MSHA rated SCSRs containing a number of additional SCSRs equal to or exceeding one each for the total number of miners reasonably likely to be in that area at calculated intervals that a miner may traverse in no more than 30 minutes traveling at a normal pace, taking into consideration the height of the coal seam and utilizing the travel times as specified in W. Va. Code R. 56-4-6.9.2. If an SCSR has an MSHA approved duration greater than 60 minutes, the intervals between storage caches shall be calculated at the distance traveled in 1/2 the approved duration.

6.9.2. Said intervals shall be calculated in accordance with the following:

Height Travel/ Minute Height Travel/ Minute 28 inches 70 feet 56 inches 180 feet 32 inches 90 feet 60 inches 220 feet 36 inches 100 feet 64 inches 270 feet 40 inches 120 feet 68 inches 280 feet 44 inches 135 feet 72 inches 290 feet 48 inches 150 feet 76 inches 295 feet 52 inches 160 feet 80 inches 300 feet

6.10. The SCSR Storage Cache Plan shall include the following:

6.10.1. The size and physical features of the mine;

6.10.2. The maximum number of miners underground during each working shift;

6.10.3. The proposed location of the various storage caches and the emergency shelter/chamber in relation to miners underground; and

6.10.4. A schedule of compliance, which shall include:

6.10.4.a. A narrative description of how the operator will achieve compliance with W. Va. Code R. 56-4-6.

6.10.4.b. A schedule of measures, including an enforceable sequence of actions with milestones, leading to compliance; and

6.10.4.c. A statement indicating when the implementation of the proposed plan will be complete.

6.11. Each operator shall submit as attachments to its SCSR Storage Cache Plan the following:

6.11.1. A statement that the analysis and evaluation required by Section 6.4. of this rule has been completed;

6.11.2. A statement indicating the training dates for the use of the SCSRs; and

6.11.3. The name of the person or persons representing the operator, including his or her title, position, mailing address and telephone number, who can be contacted by the Director for all matters relating to the SCSR Storage Cache Plan and the weekly inspections of each storage cache.

6.12. Within 30 calendar days of the Directors approval of the plan, the operator shall submit to the Director a copy of any contract, purchase order, or other proof of purchase of such number of additional SCSRs consistent with the operators schedule of compliance.

6.13. After the Director has approved an operators SCSR Storage Cache Plan, the operator shall submit revisions to the plan at any time that changes in the operational conditions result in substantive modifications. In addition, at any time after the Director has approved an operators SCSR Storage Cache Plan, the operator may submit proposed modifications or revisions to its plan along with the reasons therefor to the Director.

6.13.1. Within 30 calendar days after receipt by the Director of any proposed revisions or modifications to the SCSR Storage Cache Plan, the Director shall either approve or reject the revisions, stating in detail the reasons for such rejection.

6.13.2. The Director may require modifications to a Storage Cache Plan at any time following the investigation of a fatal accident or serious injury, as defined by W. Va. Code R. 36-19-3.2, if such modifications are warranted by the findings of the investigation.

6.14. If the Director, in his/her sole discretion, determines that an operator has failed to provide an SCSR Storage Cache Plan or progress report, has provided an inadequate SCSR Storage Cache Plan or progress report, has failed to comply with its approved SCSR Storage Cache Plan or compliance schedule, or has failed to provide a copy of any contract, purchase order or other proof of purchase required under this section, in an effort to delay, avoid or circumvent compliance with W. Va. Code 22A-2-55 or this rule, the Director shall issue a cessation order to the operator for the affected mine in accordance with W. Va. Code 22A-1-15.

W. Va. Code R. § 56-4-7 Placement of Intrinsically Safe Battery-Powered Lights and Lifeline Cords

7.1. Intrinsically safe battery-powered strobe lights approved by the Director shall be affixed to each storage cache of SCSRs and shall operate continuously or be capable of automatic activation in the event of an emergency.

7.1.1. All intrinsically safe battery-powered strobe lights affixed to each storage cache of SCSRs shall be approved by the Director and MSHA and maintained in accordance with applicable MSHA requirements.

7.1.2. Prior to approval of any MSHA certified intrinsically safe battery-powered strobe light, the Director shall have prepared an independent analysis of the added risk incurred from added battery powered devices throughout the mine in the event of a catastrophic explosion.

7.1.3. When determining if intrinsically safe battery-powered strobe lights present an acceptable risk, the Director shall review those rated intrinsically safe by MSHA and may approve them for use in West Virginia mines. A list of approved intrinsically safe battery-powered strobe lights shall be maintained on the MHS&T web site: https://wvminesafety.wv.gov.

7.2. A reflective sign with the words SELF-RESCUER or SELF-RESCUERS shall be conspicuously posted at each such storage cache and reflective direction signs shall be posted leading to each storage cache.

7.3. Lifeline cords installed in primary escape-ways shall be attached to each storage cache container and extend from the last permanent stopping to the surface or nearest escape facility, excluding belt and track entries, and must:

7.3.1. Be made of flame-resistant material;

7.3.2. Be marked with reflective material every 25 feet;

7.3.3. Be located in such a manner for miners to use effectively to escape; and

7.3.4. Have directional indicators signifying the route of escape placed at intervals not exceeding 100 feet.

7.4. In lieu of installed lifelines in track or belt entries, markers such as floor mats with arrows, fish plate reflectors, red/green lasers shall be installed at distances not to exceed 1,000 feet or line of sight, or other equivalent devices may be used if approved by the Director.

W. Va. Code R. § 56-4-8 Emergency Shelters/Chambers

8.1. An emergency shelter/chamber shall be maintained within 1,000 feet of the nearest working face in each working section. Each emergency shelter/chamber shall be approved by the Director and constructed and maintained in a manner prescribed by the Director.

8.2. The Director may approve, as an alternative to a shelter/chamber, an additional surface opening located no more than 1,000 feet from the nearest working face and accurately located on escape-way maps as required by W. Va. Code 22A-2-1.

8.3. The Director shall acquire, no later than July 1, 2006, the necessary technical/engineering support needed to evaluate the performance of emergency shelter/chamber components/systems, and to review the effectiveness of emergency shelter/chamber plans.

8.4. The Director shall, no later than July 10, 2006, issue an open opportunity for emergency shelter/chamber providers to submit products for approval. The Director shall maintain a current list of pending and approved emergency shelter/chambers on the West Virginia MHS&T web site: https://minesafety.wv.gov.

8.5. Providers of emergency shelter/chamber seeking approval shall submit documentation prescribed by the Director that shall include a certification by an independent West Virginia licensed professional engineer that the proposed product meets the requirements set forth in Section 8, a description of the process used in making that determination and a certification in the following form: I, the undersigned, herby certify that this product, to the best of my knowledge and belief, meets or exceeds all requirements set forth in W. Va. Code R. 56-4-8.

8.6. Any emergency shelter/chamber approved by the Director shall:

8.6.1. Provide a minimum of 48 hours life support (air, water, emergency medical supplies, and food) for the maximum number of miners reasonably expected on the working section;

8.6.2. Be capable of surviving an initial event with a peak overpressure of 15 psi for 3 seconds and a flash fire as defined by National Fire Protection Association standard NFPA-2113 of 300 degrees Fahrenheit for 3 seconds;

8.6.3. Be constructed in a manner such that it will be protected under normal handling and during pre-event mine conditions;

8.6.4. Provide for rapidly establishing and maintaining an internal shelter atmosphere of oxygen above 19.5%, carbon dioxide below 0.5%, carbon monoxide below 50 ppm, and an apparent-temperature of 95 degrees Fahrenheit;

8.6.5. Provide the ability to monitor carbon monoxide and oxygen inside and outside the shelter/chamber;

8.6.6. Provide a means for entry and exit that maintains the integrity of the internal atmosphere;

8.6.7. Provide a means for MSHA certified intrinsically safe power if power required;

8.6.8. Provide a minimum 8 quarts of water per miner;

8.6.9. Provide a minimum of 4,000 calories of food per miner;

8.6.10. Provide a means for disposal of human waste to the outside of the shelter/chamber;

8.6.11. Provide a first aid kit as defined at W. Va. Code 22A-2-59(3)(b) independent of the section first aid kit required by W. Va. Code 22A-2-59(3) and 2-60(f);

8.6.12. Have provisions for inspection of the shelter/chamber and contents;

8.6.13. Contain manufacturer recommended repair materials;

8.6.14. Provide a battery-powered occupant-activated strobe light of a model approved by the Director that is visible from the outside indicating occupancy;

8.6.15. Provide provisions for communications to the surface; and

8.6.16. Provide proof of current approval for all items and materials subject to MSHA approval.

8.7. No later than April 15, 2007 all underground mine operators shall submit an emergency shelter/chamber plan for approval by the Director in accordance with W. Va. Code 22A-1-36. The design, development, submission, and implementation of the shelter/chamber plan shall be the responsibility of the operator of each mine.

8.8. Within 30 calendar days after submission of the emergency shelter/chamber plan, the Director shall either approve the emergency shelter/chamber plan or shall reject and return the plan to the operator for modification and resubmission, stating in detail the reason for such rejection. If the plan is rejected, the Director shall give the operator a reasonable length of time, not to exceed 15 calendar days, to modify and resubmit such plan.

8.9. Within 15 days of approval of the emergency shelter/chamber plan by the Director, the underground mine operator shall submit as an addendum to its emergency shelter/chamber plan a copy of any contract, or purchase order, or other proof of purchase of any equipment required to complete the emergency shelter/chamber and for installation and ongoing maintenance

8.10. The operator shall submit certified progress reports no less frequently than every 60 calendar days until full compliance is achieved.

8.11. After the Director has approved an operators emergency shelter/chamber plan, the operator shall submit revisions to the emergency shelter/chamber plan at any time that changes in operational conditions result in substantive modification. In addition, at any time after approval, the operator may submit proposed modifications or revisions to its plan along with reasons therefor to the Director. Within 30 days after receipt by the Director of any proposed revisions or modifications to the emergency shelter/chamber plan, the Director shall either approve or reject the revisions, stating in detail the reasons for such rejection.

8.12. In developing the emergency shelter/chamber plan and any revisions, the operator shall take into consideration the physical features of the particular mine, emergency plans, advances in emergency shelter/chamber technologies and any other aspect of the particular mine the operator deems relevant to the development of the emergency shelter/chamber plan.

8.13. A copy of the approved emergency shelter/chamber plan shall be provided to the mine rescue teams providing coverage for the mine and included in the mine rescue program required by W. Va. Code 22A-1-35(q). Copies of the most recent version shall be available at the mine for emergency responders. As changes are made to the approved emergency shelter/chamber plan, updated versions shall be submitted to the above parties.

8.14. The proposed emergency shelter/chamber plan shall:

8.14.1. Describe the structure and operations of the emergency shelter/chamber, the surveyed location of the shelter and any necessary survey monuments for locating emergency drilling operations to the shelter/chamber and the shelter/chambers role in emergency response;

8.14.2. Ensure that proper emergency shelter/chamber use is included in initial mine hazard training in such a manner that it is in compliance with all manufacturers’ requirements and is provided yearly in addition to annual refresher training. All training shall be recorded and made available upon request;

8.14.3. Ensure weekly inspections of emergency shelters/chambers and contents shall be conducted by a certified mine foreman and/or mine examiner and recorded in weekly ventilation examination book;

8.14.4. Ensure that weekly safety meetings review the current location of applicable emergency shelters/chambers and results of the latest inspection;

8.14.5. Ensure that all opening to emergency shelters/chambers shall be equipped with easily removable tamper-proof tags such that a visual indication of unauthorized access to the emergency shelter/chamber can be detected; and

8.14.6. Ensure that the mines communication center shall monitor any communication systems associated with the emergency shelter/chamber at all times that the mine is occupied.

8.15. If the Director, in his/her sole discretion, determines that an operator has failed to provide an emergency shelter/chamber plan or progress report, has provided an inadequate emergency shelter/chamber plan or progress report, has failed to comply with its approved emergency shelter/chamber plan or compliance schedule, or has failed to provide a copy of any contract, purchase order or other proof of purchase required under this section, in an effort to delay, avoid or circumvent compliance with W. Va. Code 22A-2-55 or this rule, the Director shall issue a cessation order to the operator for the affected mine.

8.16. If there are no emergency shelters/chambers approved by May 29, 2007, operators shall install in lieu of an emergency shelter/chamber, within 1,000 feet of the nearest working face in each working section, storage caches of SCSRs sufficient to provide each miner reasonably expected to be at the working section with no less than 16 additional SCSRs rated by MSHA each for a duration of 60 minutes or greater, or an equivalent amount of breathable air and barricading materials described at W. Va. Code 29A-2-58(n).

8.17. As provided in W. Va. Code 22A-2-55(f)(3), 2-55(g)(2), and 2-55(h)(2), any person that, without the authorization of the operator or the Director, knowingly removes or attempts to remove emergency shelter/chamber or its contents approved by the Director from the mine or mine site with the intent to permanently deprive the operator of the device or knowingly tampers with or attempts to tamper with such a device shall be deemed guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than 1 year nor more than 10 years or fined not less than $10,000 nor more than $100,000, or both.

W. Va. Code R. § 56-4-9 Wireless Emergency Communication and Tracking/Locating systems

9.1. The Director shall require, in each underground mine, an integrated communication and tracking/locating system maintained consistent with W. Va. Code R. 36-5-3.2 and a component of which shall be a communication center monitored at all times during which 1 or more miners are underground. A wireless emergency communication and tracking/locating device approved by the Director shall be worn by each miner underground and shall be provided by the operator.

9.2. As soon as practicable, the Director shall notify all operators of the wireless emergency communication and tracking/locating devices approved by the Director for use by each miner underground pursuant to W. Va. Code 22A-2-55.

9.3. The Director shall acquire, no later than July 1, 2006, the necessary technical/engineering support to evaluate the performance of individual communication/tracking devices and review the effectiveness of proposed communication/tracking plans.

9.4. The Director shall, no later than July 10, 2006, issue an open opportunity for emergency communication and tracking/locating providers to submit products for approval.

9.5. The Director shall require providers seeking approval to submit documentation certified by a licensed West Virginia professional engineer that: the product has been tested for functionality in West Virginia underground mines; that the product has been or is in the process of being approved as intrinsically safe by MSHA and other criteria as the Director determines; a description of the process used in making that determination; and a certification in the following form: I, the undersigned, hereby certify that this product, to the best of my knowledge and belief, meets or exceeds all requirements set forth in W. Va. Code R. 56-4-9, that the product has been tested for functionality in West Virginia underground mines, that the product has been or is in the process of being approved as intrinsically safe by MSHA and other criteria as the Director determines.

9.6. No later than July 31, 2007 all underground mine operators shall submit a communication/tracking plan for approval by the Director in accordance with W. Va. Code 22A-1-36. The design, development, submission, and implementation of the communication/tracking plan shall be the responsibility of the operator of each mine.

9.7. Within 30 calendar days after submission of the communication/tracking plan, the Director shall either approve the communication/tracking plan, or shall reject and return the plan to the operator for modification and resubmission, stating in detail the reason for such rejection. If the plan is rejected, the Director shall give the operator a reasonable length of time, not to exceed 15 calendar days, to modify and resubmit such plan.

9.8. Within 15 days of approval by the Director, the underground mine operator shall submit as an addendum to its plan, a copy of any contract, or purchase order, or other proof of purchase of any equipment required to complete the communication/tracking system and for installation and ongoing maintenance.

9.9. The operator shall submit certified progress reports no less frequently than every 60 calendar days until full compliance is achieved.

9.10. If the Director, in his/her sole discretion, determines that an operator has failed to provide a communication/tracking plan or progress report, has provided an inadequate communication/tracking plan or progress report, has failed to comply with its approved communication/tracking plan or compliance schedule, or has failed to provide a copy of any contract, purchase order or other proof of purchase required under this section, in an effort to delay, avoid or circumvent compliance with W. Va. Code 22A-2-55 or this rule, the Director shall issue a cessation order to the operator for the affected mine under W. Va. Code 22A-1-15.

9.11. In developing the communication/tracking plan and any revisions, the operator shall take into consideration the needs for emergency communications and tracking/locating resulting from accidents as described at W. Va. Code 22A-2-66(a), physical features of the particular mine, emergency plans, existing communication infrastructure, communications required under W. Va. Code 22A-1-35(k) and 2-42 and W. Va. Code R. 36-2-2 and 5-2, advances in communication/tracking technologies and any other aspect of the particular mine the operator deems relevant to the development of the communication/tracking plan.

9.12. The proposed communication/tracking plan shall describe the structure and operations of the separate or integrated communication/tracking system(s) and its role in emergency response specific to the mine shall be detailed and submitted to the Director and, once approved, to the mine rescue teams providing coverage with an updated mine rescue program pursuant to W. Va. Code 22A-1-35(q). Copies of the most recent version shall be available at the mine for emergency responders. As changes are made to the system, updated versions shall be submitted to the above.

9.13. The proposed communication/tracking system shall include the ability for:

9.13.1. A communication center monitored at all times during which 1 or more miners are underground.

9.13.1.a. This center shall be staffed by miners holding a valid underground miner’s certificate, and trained and knowledgeable in the installed communications/ tracking systems, monitoring and warning devices, travel ways, and mine layout.

9.13.1.b. Individuals not possessing a valid underground miners certificate but working full-time as a communication center operator on or before May 25, 2006 shall be allowed to continue as communications center operators at that mine provided they will have successfully completed no later than December 31, 2006 a certified 80 hour underground miners apprentice training program, as defined in W. Va. Code R. 48-2-2.7(a), renewed annually pursuant to W. Va. Code R. 48-2-2.8(a) and documentation is available for inspection consistent with W. Va. Code R. 36-24-5.

9.13.2. Knowing the location of all miners immediately prior to an event by tracking/locating device in the escape-ways, normal work assignments, or notification of the communication center.

9.13.3. Knowing the location of miners in the escape-ways after an event providing the tracking system is still functional.

9.13.4. Check-in and check-out with the communication center by miners prior to entrance and exit from bleeders and remote or seldom used areas of the mine (all times shall be logged).

9.13.5. Allowing 2-way communications coverage in at least 2 separate air courses and at least 1 of which shall be an intake.

9.13.6. Maintaining communication/tracking after loss of outside power and maintain function both inby and outby of the accident event site with suitable supply of equipment for rapid reconnection.

9.13.7. Maintain a surface supply of communication/ tracking devices for use by emergency rescue personnel.

9.13.8. Allow for communication to surface at all required emergency shelters/chambers.

9.13.9. All miners and likely emergency responders shall be trained in the use, limitations and inter-operability of all components of the communication and tracking/locating system. This shall be incorporated into ongoing required training. All training shall be recorded and made available upon request.

9.14. The operator shall provide a schedule of compliance for the communication/tracking plan, which shall include:

9.14.1. A narrative description of how the operator will achieve compliance with above requirements;

9.14.2. A schedule of measures, including an enforceable sequence of actions with milestones, leading to compliance; and

9.14.3. A statement indicating when the implementation of the proposed plan will be complete.

9.15. The operator shall provide as attachments to its communication/tracking plan:

9.15.1. A statement of the analysis and evaluation required in developing its plan;

9.15.2. A statement indicating the initial training dates for implementation of the communication/ tracking system and how the communication/tracking system will be incorporated in other required training;

9.15.3. A statement regarding how the communications/tracking system will be tested and maintained; and

9.15.4. The name of the person or persons representing the operator, including his or her title, mailing address, email address and telephone number, who can be contacted by the Director for all matters relating to the communication/tracking plan and weekly testing of the system.

9.16. After the Director has approved an operators communication/tracking plan, the operator shall submit revisions to the communications plan at any time that changes in operational conditions result in a substantive modification in the communication/tracking system. In addition, at any time after approval, the operator may submit proposed modifications or revisions to its plan along with reasons therefor to the Director. Within 30 days after receipt by the Director of any proposed revisions or modifications to the communications/tracking plan, the Director shall either approve or reject the revisions, stating in detail the reasons for such rejection.

9.17. The Director may require modifications to a communication/tracking plan at any time following the investigation of a fatal accident or serious injury, as defined by W. Va. Code R. 36-19-3.2, if such modifications are warranted by the findings of the investigation.

Series 08 Rule Governing the Submission and Approval of a Comprehensive Mine Safety Program for Coal Mining Operations in the State of West Virginia

W. Va. Code R. § 56-8-1 General

1.1. Scope. -- Rule Governing the Submission and Approval of a Comprehensive Mine Safety Program for Coal Mining Operations in the State of West Virginia.

1.2. Authority. -- W. Va. Code §§22A-1-6 and 22A-1-36(a).

1.3. Filing Date. – March 30, 2026.

1.4. Effective Date. – March 30, 2026.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2031.

W. Va. Code R. § 56-8-2 Preamble - Comprehensive Safety Program for Coal Mining Operations in the State of West Virginia

2.1. Purpose. -- The primary goal of W. Va. Code §22A-1-36 is to protect the health and safety of this state's coal miners by increasing safety awareness and by providing a safe work place through the development and implementation of comprehensive safety programs for each coal mine in the state. The purpose of this rule is to implement the mandate of W. Va. Code §22A-1-36 by requiring each coal operator and each independent contractor to develop a comprehensive safety program for each active mine and by detailing the requirements for such programs. In implementing such mandate, it is recognized that different types of safety programs may be developed for each mine, depending upon the output of the particular mine, the number of employees of the particular mine, the location of the particular mine, and the physical features of the particular mine.

W. Va. Code R. § 56-8-3 Definitions

3.1. Unless the context in which a word or phrase appears clearly requires a different meaning, all terms used in this rule that are not defined herein, shall have the meanings set forth in W. Va. Code §22A-1-2.

3.1.1. Active Mining Operation. -- The term “active mining operation” shall mean, when used herein, any active surface mining operation or active underground mining operation.

3.1.1.a. The term “active underground mining operation” shall mean an underground coal mine which is ventilated, and in which miners are employed.

3.1.1.b. The term “active surface mining operation” shall mean a surface coal mine where miners are employed.

3.1.2. Annual Review. -- The term “annual review” shall mean those annual reviews required by section 8.4. of this rule.

3.1.3. Comprehensive Mine Safety Program. -- The term “comprehensive mine safety program,” “comprehensive safety program,” or “program” shall mean the particular safety program at each mine as required in W. Va. Code §22A-1-36, which is developed and submitted by the coal operator or independent contractor, approved by the director, and includes such level of the safety program components set forth in Section 7.2. of this rule as the director deems appropriate. Such program shall include and address the extraction, production, processing and preparation activities conducted by the mine operator or independent contractors.

3.1.4. Code. -- The term “code” shall mean the West Virginia Code of 1931, as amended.

3.1.5. Director. -- The term “director” shall mean the director of the office of miners’ health, safety and training.

3.1.6. Independent Contractor. -- The term “independent contractor” shall mean any firm, corporation, partnership, or individual that contracts to engage in the extraction, production, processing or preparation activities associated with a coal mine.

3.1.7. Mine. -- The term “mine,” when used herein, shall mean any surface coal mine or underground coal mine as defined herein.

3.1.8. Operator. -- The term “operator” means any firm, corporation, partnership, or individual operating any coal mine or part thereof, or engaged in the construction of any facility associated with a coal mine.

3.1.9. Surface Coal Mine. -- The term “surface coal mine” shall mean a surface area of land, and all structures, facilities, machinery, tools, equipment, excavations, and other property, real or personal, placed upon or above the surface of such land by any person, which are used in, or to be used in, or resulting from the work of extracting coal from its natural deposits in the earth by any means or method, and the work of preparing the coal so extracted, and includes custom coal preparation facilities. It is identified by one federal identification number.

3.1.10. Underground Coal Mine. -- The term “underground coal mine” shall mean a mine as defined in W. Va. Code §22A-1-2(a)(6).

W. Va. Code R. § 56-8-4 Responsibility for Comprehensive Mine Safety Program

4.1. The design, development, submission, implementation, evaluation and modification of the comprehensive mine safety program shall be the responsibility of the operator or independent contractor of each mine.

W. Va. Code R. § 56-8-5 Submission of Initial Comprehensive Mine Safety Program

5.1. All operators and independent contractors of new mines shall submit a comprehensive mine safety program, and shall have such program approved by the director prior to commencement of work or operations by miners at the mine site.

5.2. After the effective date of this rule, all mines, which are temporarily inactive but which have an approved comprehensive safety program, shall resume operations under the comprehensive safety program for that mine in effect at the time such mine was temporarily closed. If the operator or independent contractor elects to retain the existing comprehensive safety program, the operator or independent contractor shall notify the director prior to the resumption of work by miners at the mine. If the operator or independent contractor elects to modify the existing comprehensive safety program, the operator or independent contractor shall submit such modifications to the director within ninety (90) calendar days after resuming active mining operations.

W. Va. Code R. § 56-8-6 Mine Evaluation for Development of the Initial Comprehensive Mine Safety Program; Submittals to Director

6.1. In developing the initial comprehensive safety program, the operator or independent contractor shall analyze the various program components, contained in Section 7 of this rule, in conjunction with the evaluation criteria provided in this rule, and shall take into consideration the output of the particular mine, the number of employees of the particular mine, the location of the particular mine, or any other aspect of the particular mine deemed relevant by the operator or independent contractors. Based upon this analysis and evaluation of the type of safety program needed at a particular mine, the operator or independent contractor shall proceed to develop a comprehensive mine safety program composed of the appropriate components contained in Section 7 of this rule and a plan and appropriate procedures for implementing each of the components of the program.

6.2. Each operator or independent contractor shall submit to the director for approval a comprehensive mine safety program in accordance with this rule. In addition each operator or independent contractor shall submit the following:

6.2.1. A statement that the analysis and evaluation required by Section 6.1 of this rule has been completed;

6.2.2. A statement indicating which process the operator or independent contractor has selected, consistent with Section 11.1. of this rule, to ensure that all employees at the mine are aware of all components of the comprehensive mine safety program prior to commencement of work at the mine;

6.2.3. A list of safety instructors and their certifications, and/or qualifications, who will have primary responsibility for planning and conducting safety training at the mine;

6.2.4. The name of the person or persons representing the operator or independent contractor, including his/her title or position and mailing address or telephone number, who can be notified by the director for all matters concerning the operator or independent contractor's comprehensive mine safety program.

6.3. Within ninety (90) calendar days after submission of the initial comprehensive safety program, the director shall either approve the program as submitted or shall reject and return the program to the operator or independent contractor for modification and resubmission, stating in detail the reasons for such rejection. If the program is rejected, the director shall give the operator or independent contractor a reasonable length of time to modify and resubmit such program.

W. Va. Code R. § 56-8-7 Primary Safety Program Components

7.1. Depending upon the safety program needs of a particular mine or independent contractor, the comprehensive mine safety program may include any or all of the components contained in Section 7.2. of this rule. Comprehensive mine safety programs submitted by independent contractors shall address only the specific type of work to be performed by the contractor.

7.2. A comprehensive mine safety program may include:

7.2.1. The operator or independent contractor's safety policy for each mine;

7.2.2. The operator or independent contractor's policies regarding personal safety protection of each worker (hard hats, shoes, etc.);

7.2.3. Safety training programs and objectives, including any or all of the following:

7.2.3.a. Classroom training;

7.2.3.b. Workplace training;

7.2.3.c. Safety meetings; and

7.2.3.d. Informal training.

7.2.4. The operator or independent contractor's practices and procedures for promoting:

7.2.4.a. Safe working practices for personnel;

7.2.4.b. Safe working conditions in the mine environment; and

7.2.4.c. Safe working practices for machinery, equipment, and systems.

7.2.5. The operator or independent contractor's emergency provisions and procedures at the mine.

7.2.6. The operator or independent contractor's procedures for accident investigation and reporting, which may include:

7.2.6.a. Investigation;

7.2.6.b. Filing;

7.2.6.c. Analysis; and

7.2.6.d. Follow-up.

7.2.7. The operator or independent contractor's practices and procedures for comprehensive mine safety program promotion and enforcement; and

7.2.8. Such other components deemed necessary by the operator or independent contractor to effectuate the goals of W. Va. Code §22A-1-36.

W. Va. Code R. § 56-8-8 Modifications

8.1. The operator or independent contractor may submit at any time proposed modifications or revisions to the comprehensive mine safety program, along with the reasons thereof, to the director.

8.2. Within ninety (90) days after receipt by the director of any proposed revisions or modifications to the program, the director shall either approve the revisions or reject the revisions, stating in detail the reasons for such rejection. If within ninety (90) days of receipt of such revisions by the director no action has been taken, the proposed revisions shall be taken as approved.

8.3. When revisions to a program are submitted to the director, the operator or independent contractor may request and the director may issue temporary approval of such revisions pending the director’s final review and approval.

8.4. The director may require modifications to a comprehensive mine safety program at any time following the investigation of a fatal accident or serious injury, as defined by Title 36, Series 19, Section 3.2(2), if such modifications are warranted by the findings of the investigation. A comprehensive mine safety program may be subject to annual review by the director after a fatality or serious accident involving bodily harm has occurred, or, if the operator has shown a pattern of mine safety violations as defined by W. Va. Code §22A-1-15(c)(2), such a finding shall also warrant annual review by the director.

8.5. Whenever the Director determines that a mine has experienced a substantial number of injuries due to materials handling, he/she shall require the mine operator to include a component in the mine’s comprehensive safety program which identifies procedures for reducing such injuries.

W. Va. Code R. § 56-8-9 Annual Review of the Comprehensive Mine Safety Program After Fatal or Serious Accident or a Pattern of Violation

9.1. Each operator or independent contractor subject to an annual review under section 8.4. of this rule shall conduct an annual review of the comprehensive mine safety program in effect at each mine. The purpose of the review shall be to determine the effectiveness of the comprehensive mine safety program by evaluating the components of the program to determine whether modifications to the existing program are necessary and desirable.

9.1.1. Each operator or independent contractor shall submit to the director within thirty (30) days after the anniversary date of the program a report which shall contain the findings of the annual review, a statement indicating whether, as a result of such review, modifications to the existing program are necessary, and if applicable, proposed modifications to the existing program. When modifications to the existing program are submitted, the operator or independent contractor may request, and the director may issue, temporary approval of requested modifications pending the director’s final review and approval.

9.1.2. The director will review the annual report submitted by the operator or independent contractor and will either approve the report, or reject the report, stating in detail the reasons for rejection. The reasons for rejection may include proposed changes to the program deemed necessary by the director and not included by the operator or independent contractor.

9.1.3. If rejected, the director shall give the operator or independent contractor a reasonable period of time to modify and resubmit such report and proposed modifications. If within thirty (30) calendar days subsequent to receipt of the report or proposed modifications by the director, no action has been taken by the director, the proposed report and modifications shall be considered approved.

9.1.4. The anniversary date of the program shall be one (1) year from the date the annual review was required.

9.2. The annual evaluation conducted pursuant to subsection 8.4. of this rule shall include a review of the following items relating to a particular mine:

9.2.1. Accident rate;

9.2.2. Accident distributions;

9.2.3. A review of violations issued by the office of miners’ health, safety and training;

9.2.4. Fatal accidents and serious injuries as defined by Title 36, Series 19, Section 3.2(2); and

9.2.5. Accident investigations conducted during the previous one-year period.

9.3. At the discretion of the mine operator or independent contractor, other sources of information may be used to ascertain performance of the safety program in the annual evaluation. They may include, but are not limited to:

9.3.1. Mine conditions or changes in mine conditions;

9.3.2. Mining methods or equipment or changes in mining methods or equipment at the mine;

9.3.3. Number of working sections at a mine or changes in the number of working sections at the mine;

9.3.4. Personnel or management, or changes in personnel or management;

9.3.5. Instructors responsible for safety training or changes in instructors responsible for safety training; and

9.3.6. Findings from safety observations conducted by responsible mine officials.

W. Va. Code R. § 56-8-10 Review Procedure

10.1. If a comprehensive mine safety program or modifications thereto are rejected by the director pursuant to Sections 6.3, 8.2., or 9.1. of this rule, the operator or independent contractor shall be entitled to a hearing before the director to contest such rejection.

10.2. The operator or independent contractor may petition the director to be removed from annual review. In that petition, the operator or independent contractor shall set forth reasons as to why it should no longer be subject to annual review. If the director rejects that petition, the operator or independent contractor shall be entitled to a hearing before the director to contest such rejection.

10.3. The operator or independent contractor shall notify the director within fifteen (15) days of the receipt of such rejection that he/she is requesting a hearing and shall state specifically his/her reasons thereto. A hearing shall be scheduled within ten (10) days of the receipt of the request for hearing and shall be held within twenty (20) days of such request.

10.4. Any operator or independent contractor adversely affected by a decision rendered by the director pursuant to subsection 9.2. of this rule may appeal such decision in accordance with W. Va. Code §29A-5-4.

W. Va. Code R. § 56-8-11 Right of Mine Employees to Review and Comment on the Comprehensive Mine Safety Program; Posting Requirements

11.1. Each employee of the mine shall be afforded an opportunity to review and submit comments to the director regarding the review of the comprehensive mine safety program and any modifications or revisions to the program and the initial report. The operator or independent contractor shall satisfy this requirement by selecting one of the two methods set out in 11.1.1. or 11.1.2. below.

11.1.1. The operator or independent contractor may establish a safety committee at the mine. This committee shall consist of at least three (3) non-supervisory employees. Where feasible, the committee should have representation on each working shift. The requirements for such committee may be satisfied with an existing committee for the mine. It shall be the responsibility of the operator or independent contractor to provide this committee with the opportunity to review the initial comprehensive safety program and any modifications or revisions thereto, and the annual report, and to provide written comments and suggestions to the director with copies to the operator or independent contractor. Such opportunity to review shall be satisfied by compliance with section 11.4. of this rule. It shall be the responsibility of the committee to ensure that all employees of the mine have the opportunity to review and comment on the proposed comprehensive safety program, any proposed modifications or revisions thereto.

11.1.2. The operator or independent contractor may hold a meeting for all employees of the mine at which meeting the operator or independent contractor shall provide an in-depth review of each of the components of the comprehensive safety program for the mine. The purpose of such meeting is to provide each employee of the mine the opportunity to review and comment on the proposed comprehensive safety program and any modifications or revisions thereto, and the annual report. Such meeting shall be held prior to the submittal of the initial program and the submittal of any modifications or revisions to such program, and the submittal of the annual report. The operator or independent contractor shall notify the director and post notice on the mine bulletin board of the time and place of the meeting at least ten (10) calendar days prior to the meeting. The director or his/her authorized representative has the right to attend such meeting.

11.2. If the operator or independent contractor selects a safety committee (11.1.1.) to satisfy the requirements of section 11.1., he/she shall provide a minimum of eight (8) hours annual instruction for each member of the safety committee at each mine, which instruction shall include materials and training relevant to the review and evaluation of the components of the comprehensive safety program. This instruction may be satisfied through other instruction and training programs the operator or independent contractor is required to provide, as approved by the director.

11.3. Notwithstanding which option the operator or independent contractor elects to satisfy the requirements of this section, each employee of the mine has the right to review the proposed comprehensive mine safety program and any modifications or revisions thereto, and the annual report, and to provide comments to the director.

11.4. A copy of the proposed modifications or revisions of the existing comprehensive mine safety program and the annual report shall be posted on the mine bulletin board, as provided in W. Va. Code §22A-1A-16(a), for at least fifteen (15) days prior to the date of submittal to the director.

11.5. A copy of the current approved comprehensive mine safety program shall be made available to any employee of the mine upon request and shall also be posted on the mine bulletin board as provided in W. Va. Code §22A-1A-16(a).

W. Va. Code R. § 56-8-12 Miscellaneous

12.1. The director may develop forms and guidelines to facilitate development, review, and approval of the comprehensive safety program submitted by each operator or independent contractor; provided, however, that such forms and guidelines cannot modify or expand the requirements of this rule.

Series 10 Rule Governing Reporting Requirements for Independent Contractors

W. Va. Code R. § 56-10-1 General

1.1. Scope. -- This rule governs reporting requirements for independent contractors registered with the West Virginia Office of Miners Health, Safety and Training.

1.2. Authority. -- W. Va. Code 22A-1-6.

1.3. Filing Date. -- April 24, 2024.

1.4. Effective Date. -- April 24, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2029.

1.6. Applicability. -- This rule applies to each independent contractor registered with the West Virginia Office of Miners Health, Safety and Training as required by W. Va. Code 22A‑2‑63(e).

W. Va. Code R. § 56-10-2 Reporting Requirements

2.1. On or before the end of each calendar quarter, each independent contractor registered with the West Virginia Office of Miners Health, Safety and Training as required by W. Va. Code 22A-2-63(e), shall file with the Director a report covering the preceding calendar quarter on forms approved by the Director. Such report shall contain the following information for each mine(s) where the independent contractor performed work or provided services:

2.1.1. The total number of employees performing services at a mining operation.

2.1.2. The employee hours worked at a mining operation.

2.1.3. The total reported accidents and occupational injuries that occurred to employees while performing services at a mining operation pursuant to W. Va. Code R. 36-19-1.

2.1.4. Each mines identification number where employee hours were worked and/or where the accident(s) or occupational injury (injuries) occurred.

Series 12 Rule Governing Assessing Health and Safety Violation Penalties

W. Va. Code R. § 56-12-1 General

1.1. Scope. -- This rule establishes the procedure whereby the Office of Miners Health, Safety and Training assesses civil monetary penalties, pursuant to W. Va. Code 22A‑1‑21, to those having violated the states mine health and safety laws.

1.2. Authority. -- W. Va. Code 22A-1-21.

1.3. Filing Date. -- April 24, 2024.

1.4. Effective Date. -- April 24, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2029.

W. Va. Code R. § 56-12-2 Definitions

2.1. Unless the context in which a word or phrase appears requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2.

2.2. Director shall mean the director of the State of West Virginia Office of Miners Health, Safety and Training.

2.3. Knowing violation shall mean a violation occurring when:

2.3.1. An operator (or miner, for an individual violation) causes a violative condition or practice by exercising reckless and willful disregard of mandatory health and safety standards, or recklessly and willfully failed to correct an unsafe condition or practice which was known to exist; or

2.3.2. An operator refuses to comply with any order issued under W. Va. Code 22A-1-14 or 15; or

2.3.3. An operator refuses to comply with any order issued in a final decision under W. Va. Code 22A-1-1, except for an order incorporated in a decision under W. Va. Code 22A-1-21(a) or 22(b).

2.4. Good faith shall mean that, in the judgment of the inspector, the operator has demonstrated extraordinary effort above and beyond that which would normally be expected to abate the violation.

2.5. Mine health and safety laws shall mean the provisions of W. Va. Code Chapters 22 and 22A and any rule promulgated thereunder relating to health and safety standards.

2.6. Independent contractor has the same meaning as that term is defined at W. Va. Code State R. 36-20-1 et seq.

2.7. Annual tonnage shall mean tonnage produced in the previous calendar year, or, in the case of a mine opened or owned less than one full calendar year, the tonnage thus far produced multiplied to an annual amount based on months of operation.

W. Va. Code R. § 56-12-3 Assessment Procedure For Operators

3.1. Civil monetary penalty assessments are mandatory.

3.2. The amount of a civil monetary penalty assessments will be determined based upon consideration of the following 5 criteria:

3.2.1. Gravity of the violation;

3.2.2. History of previous violations;

3.2.3. Size of the business charged with a violation;

3.2.4. Demonstrated good faith in achieving compliance after notification of the violation; and

3.2.5. Whether the operator was negligent.

3.3. Gravity of the violation will be evaluated by the inspector or representative of the director, and points allocated accordingly.

3.3.1. Points will be allocated in the following 4 categories:

3.3.1.a. Likelihood of an occurrence of an event which the health and safety laws are intended to prevent;

3.3.1.b. The severity of the injury which might be expected to result from such an occurrence; and

3.3.1.c. The number of persons potentially affected by such an occurrence; and

3.3.1.d. Whether the operator was negligent.

3.3.2. Points will be allocated in the following manner:

3.3.2.a. Likelihood of occurrence Unlikely . . . . . . . . . . . . . . . . . . . . . . .0 points Reasonably likely . . . . . . . . . . . . . . 10 points Occurred . . . . . . . . . . . . . . . . . . . . . 20 points

3.3.2.b. Severity of injury expected None 0 points No lost work days 6 points Lost/restricted work days 11 points Permanently disabling 15 points Fatal 20 points

3.3.2.c. Number of persons potentially affected 0 0 points 1 1 points 2 2 points 3 4 points 4 to 5 6 points 6 to 9 8 points More than 9 10 points

3.3.2.d. Negligence No negligence 0 points Low negligence 10 points Moderate negligence 15 points High negligence 20 points

3.4. The operators history of violations over the previous 24 months will be evaluated by the inspector or representative of the director and points allocated accordingly.

3.4.1. For mine operators, points will be calculated based upon the average number of violations per inspection day over the previous 24 months.

3.4.2. For independent contractors, points will be calculated based upon the total number of violations during the previous 24 months.

3.4.3. Points will be allocated in the following manner:

3.4.3.a. Mine operators:

Average number violations/ inspection day 0 0 points Over 0 to 0.3 2 points Over 0.3 to 0.5 5 points Over 0.5 to 0.7 8 points Over 0.7 to 0.9 11 points Over 0.9 to 1.1 14 points Over 1.1 to 1.3 17 points Over 1.3 to 1.5 20 points Over 1.5 to 1.7 22 points Over 1.7 to 1.9 23 points Over 1.9 to 2.1 24 points Over 2.1 25 points

3.4.3.b. Independent contractors:

Total number of violations 1 to 5 2 points 6 to 10 5 points 11 to 15 8 points 16 to 20 11 points 21 to 25 14 points 26 to 30 17 points 31 to 35 20 points 36 to 40 22 points 41 to 45 23 points 46 to 50 24 points More than 50 25 points

3.5. Size of the business charged with a violation will be evaluated by the inspector or representative of the director, and points allocated accordingly. Size of the mine will be calculated by considering the annual tonnage of the mine. Mines which have not submitted tonnage reports by the dates required by W. Va. Code 22A-2-77 will be assessed the maximum amount of 5 points.

Size of Business (annual tonnage) 0 - 100,000 tons 1 point 100,001 - 500,000 tons 2 points 500,001 - 1,000,000 tons 3 points 1,000,001 - 2,000,000 tons 4 points Over 2,000,000 tons 5 points

3.6. The points allocated in the manner set forth in Sections 3.3., 3.4. and 3.5., above, will be totaled, and the total number converted to a dollar amount, as per Table 1, infra.

3.7. Demonstrated good faith by the operator in achieving compliance after notification of the violation will be evaluated by the inspector or representative of the director, and the total dollar amount of the penalty may be modified accordingly.

3.7.1. If the operator fails to abate the violation within the time prescribed, and there are, in the opinion of the inspector or representative of the director, extenuating circumstances beyond the operators control which prevent the abatement of the violation within such time, the amount of the assessment will not be affected.

3.7.2. If the operator fails to abate the violation within the prescribed time, and an order is issued pursuant to W. Va. Code 22A-1-15(b), the total dollar amount of the assessment will be increased by 15%.

3.7.3. If the operator was already working to correct the violation when discovered, or, in the judgment of the inspector, the operator has demonstrated extraordinary effort above and beyond that which would normally be expected to abate the violation, the total dollar amount of the assessment will be decreased by 15% if the original assessment is greater than $60.

W. Va. Code R. § 56-12-4 Assessment Procedure For Knowing Violations

4.1. In addition to any monetary assessment determined under section 3 of these rules, any operator issued a knowing violation shall be assessed 1 knowing point for every 20 civil penalty points accrued. Knowing points are converted to a monetary amount, as per the following table:

Knowing Civil Penalty Conversion Table Civil Penalty Knowing Points Points Penalty 0-20 1 $1,000 21-40 2 $2,000 41-60 3 $3,000 61-80 4 $4,000 81-100 5 $5,000

4.2. In addition to any assessment determined under section 3 of this rule, a subsequent knowing violation, issued to the same operator at the same operation during the same inspection within the same quarter, shall result in the assessment of 2 knowing points for every 20 civil penalty points accrued. Subsequent knowing points are converted to a monetary amount as per the following table:

Subsequent Knowing Civil Penalty Conversion Table Civil Penalty Knowing Points Points Penalty 0-20 2 $2,000 21-40 4 $4,000 41-60 6 $6,000 61-80 8 $8,000 81-100 10 $10,000

W. Va. Code R. § 56-12-5 Assessment Procedure For Individuals

5.1. Any miner who knowingly violates the mine health and safety laws shall be assessed a civil penalty not to exceed $250 for each such occurrence.

5.2. The amount of civil monetary penalty assessments will be determined based upon consideration of 2 criteria:

5.2.1. Gravity of the violation; and

5.2.2. History of prior violations.

5.3. Gravity of the violation will be evaluated by the inspector or representative of the director, and points allocated accordingly.

5.3.1. Points will be allocated in the following 3 categories:

5.3.1.a. Likelihood of an occurrence of an event, which the health and safety laws are intended to prevent;

5.3.1.b. The severity of the injury which might be expected to result from such an occurrence; and

5.3.1.c. The number of persons potentially affected by such an occurrence.

5.3.2. Points will be allocated in the following manner:

5.3.2.a. Likelihood of occurrence Unlikely 0 points Reasonably likely 10 points Occurred 20 points

5.3.2.b. Severity of injury expected None 0 points No lost work days 5 points Lost/restricted work days 10 points Permanently disabling 15 points Fatal 20 points

5.3.2.c. Number of persons potentially affected 0 0 points 1 5 points 2 10 points 3 15 points 4 to 5 20 points 6 to 9 25 points More than 9 30 points

5.4. The miners history of prior violations over the previous 36 months will be evaluated by the inspector or representative of the director, and points allocated accordingly. Points will be allocated in the following manner: 1 violation 15 points 2 or more violations 30 points

5.5. The points allocated in the manner set forth in 5.3 and 5.4, above, will be totaled, and the total number converted to a dollar amount by using the following table:

Civil Penalty Point Conversion Table For Individuals Points Penalty 1 to 10 $50.00 11 to 20 100.00 21 to 30 150.00 31 to 40 175.00 41 to 50 200.00 51 to 60 225.00 61 to 70 240.00 71 to 100 250.00 Table 1 Civil Penalty Point Conversion Table For Operators Points Penalty ($) Points Penalty ($) 0 - 15 60.00 66 840.00 16 - 31 96.00 67 880.00 32 100.00 68 927.00 33 104.00 69 960.00 34 108.00 70 1000.00 35 114.00 71 1050.00 36 120.00 72 1100.00 37 126.00 73 1150.00 38 132.00 74 1333.00 39 138.00 75 1667.00 40 144.00 76 1800.00 41 152.00 77 1933.00 42 160.00 78 2067.00 43 168.00 79 2200.00 44 176.00 80 2333.00 45 184.00 81 2467.00 46 194.00 82 2600.00 47 204.00 83 2733.00 48 214.00 84 2867.00 49 224.00 85 3000.00 50 234.00 86 3133.00 51 246.00 87 3267.00 52 256.00 88 3400.00 53 266.00 89 3533.00 54 276.00 90 3667.00 55 286.00 91 3800.00 56 300.00 92 3933.00 57 318.00 93 4067.00 58 336.00 94 4200.00 59 354.00 95 4333.00 60 372.00 96 4467.00 61 392.00 97 4600.00 62 412.00 98 4733.00 63 434.00 99 4867.00 64 456.00 100 5000.00 65 480.00

Series 13 Drug Testing of Mine Inspectors and Mine Safety Instructors

W. Va. Code R. § 56-13-1 General

1.1. Scope. -- This rule clarifies the Office of Miners Health, Safety and Training authority under W. Va. Code 22A-1-9, 22A-1-12(a) and 22A-1-12(e) to determine whether mine inspectors, surface mine inspectors, mine safety instructors, electrical inspectors, or persons seeking appointment as a mine inspector, surface mine inspector, mine safety instructor, or electrical inspector, are of good character, reputation and temperate habits, and do not suffer from physical or mental impairment, incompetency, neglect of duty, or malfeasance in office as a result of controlled substance, or drug abuse.

1.2. Authority. -- W. Va. Code 22A-1-6, 22A-1-9, 22A-1-12, and 29A-3-1 et seq.

1.3. Filing Date. – July 27, 2023

1.4. Effective Date. -- August 31, 2023.

W. Va. Code R. § 56-13-2 Purpose

2.1. The Office of Miners Health, Safety and Training recognizes that the critical mission of mine inspections requires the maintenance of a drug free work environment and that the practice of mine inspections has several uniquely compelling interests that justify the use of drug testing. Additionally, the general citizenry of the State of West Virginia has a right to expect that mine inspectors, surface mine inspectors, mine safety instructors, electrical inspectors and others are at all times both physically and mentally able to perform their duties. The Office of Miners Health, Safety and Training believes that there is sufficient evidence to conclude that the use of controlled substances and other forms of drug abuse could seriously impair any mine inspectors, surface mine inspectors, mine safety instructors, electrical inspectors or others physical and mental health, and thus, their job performance, and places miners, mine personnel, mine inspectors, surface mine inspectors, mine safety instructors, electrical inspectors and the general populations lives, health and welfare at risk.

W. Va. Code R. § 56-13-3 Definitions

3.1. Unless the context in which a word or phrase appears clearly requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A‑1‑2.

3.2. Controlled substance means a drug, substance or immediate precursor in Schedule I-V as defined by W. Va. Code 60A-1-101(d).

3.3. Director shall mean the director of the Office of Miners Health, Safety and Training.

3.4. Drug shall mean substances recognized as drugs in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement thereto; substances intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or animals; substances (other than food) intended to affect the structure or any function of the body of man or animals; and substances intended for use as a component of any article specified in this section.

3.5. Electrical inspector shall mean an electrical inspector as provided for in W. Va. Code 22A-1-11.

3.6. Employee shall mean a mine inspector, prospective mine inspector, mine safety instructor prospective mine safety instructor, surface mine inspector, prospective surface mine inspector, electrical inspector or prospective electrical inspector.

3.7. Mine inspector shall mean a state mine inspector as provided for in W. Va. Code 22A-1-8.

3.8. Mine Safety Instructor shall mean a state mine safety instructor as provided for in W. Va. Code 22A-1-9.

3.9. OMHST shall mean the Office of Miners Health, Safety and Training.

3.10. Post-accident drug testing shall mean a drug test performed pursuant to an accident resulting in bodily injury to the employee or any other individual or damage to state property.

3.11. Random drug testing shall mean that each employee subject to testing has a statistically equal chance of being selected for testing at random and at unscheduled times. The selection of employees for random testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with the employees social security number, payroll identification number, or other comparable identifying number. Twenty-five percent (25%) of all OMHST employees shall be randomly drug tested per year. Random drug testing shall be conducted monthly.

3.12. Pre-employment drug testing shall mean a drug test performed on any individual seeking employment with OMHST.

3.13. Reasonable cause shall mean a ground for belief linked to articulable, objective facts or circumstances to warrant submitting an employee to testing.

3.14. Reasonable cause drug testing shall mean a drug test ordered by OMHST for an employee when OMHST has reasonable cause to believe the employee is under the influence of a controlled substance or alcohol or is a current user of a controlled substance.

3.15. Surface mine inspector shall mean a surface mine inspector as provided for in W. Va. Code 22A-1-13.

W. Va. Code R. § 56-13-4 Prohibited Activities

4.1. Employees of OMHST shall not:

a. Illegally possess any controlled substance;

b. Ingest any controlled substance or any drug or prescription drug unless at the direction of a licensed medical practitioner;

c. Ingest any prescribed or over-the-counter drug in amounts beyond the recommended dosage;

d. Use alcohol in any manner while on duty or present themselves for duty in any state of alcohol induced intoxication;

e. Refuse to participate in any drug test as directed by the Director; and/or f. Possess or submit an adulterated or substituted urine specimen.

W. Va. Code R. § 56-13-5 Drug Testing Procedure

5.1. All employees of OMHST as listed in Section 5.6. of this rule form the test pool and are subject to unannounced, random drug testing procedures.

5.2. Implementation of this procedure will be delegated, on a contractual basis, to an entity or corporation approved by the Director.

5.3. All employees of OMHST may be directed to submit to reasonable cause drug testing when reasonable cause exists to warrant the testing of such employees.

5.4. Any employee of OMHST may be directed to submit to a post-accident drug test when appropriate.

5.5. The Director shall cause a randomly selected panel of employees be tested at intervals of his/her choosing. The intent is that twenty-five percent (25%) of all OMHST employees undergo a random drug test annually.

5.6. It is the intent of this procedure to include in the random drug test pool those employees whose job responsibilities involve public safety which may impact the health, safety, rights and privileges of others, or with the public welfare. Based upon the foregoing criteria, those employees who are deemed to be eligible for inclusion into the random drug test pool are:

a. Mine inspectors;

b. Mine safety instructors;

c. Surface mine inspectors;

d. Electrical inspectors; and e. Any employee of OMHST routinely entrusted with a state vehicle.

5.7. All random, pre-employment, post-accident and reasonable suspicion drug tests shall include a ten (10) panel urine test for the following substances:

a. Amphetamines, b. Cannabinoids/THC, c. Cocaine, d. Opiates, e. Phencyclidine (PCP), f. Benzodiazepines, g. Propoxyphene, h. Methadone, i. Barbiturates, and j. Synthetic narcotics.

5.8. In addition, all random, pre-employment, post-accident and reasonable suspicion drug tests shall include a chemical test of breath for alcohol. No employees blood alcohol level shall meet or exceed four one hundredths of one percent (.04) concentration at the time of testing.

5.9. All random, pre-employment, post-accident and reasonable suspicion drug tests shall be performed and administered in accordance with the standards and protocols set forth in the United States Department of Transportations rule found in 49 C.F.R. Part 40, and collected by individuals who are certified as complying with said regulations.

5.10. The chemical test of breath shall be an alcohol confirmation test, as provided in 49 C.F.R. Part 40, Subpart M, taken using an evidential breath testing device listed on the National Highway Traffic Safety Administration (NHTSA) most current Conforming Products List and conducted by a breath alcohol technician meeting the training requirements found in 49 C.F.R. Part 40, Subpart J.

5.11. All random, pre-employment, post-accident and reasonable suspicion drug tests shall be tested by laboratories certified by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA) for collection.

5.12. Reasonable cause drug testing is based on a totality of circumstances. A variety of factors may be considered when establishing reasonable cause. Such factors may include, but are not limited to, the following:

5.12.1. A pattern of abnormal conduct or specific behaviors or deviations from expected performance including but not limited to:

1. Frequent absences/tardiness;

2. Serious errors in judgment;

3. Numerous accidents both on and off duty;

4. Chronic missed deadlines;

5. Mood swings, irrational behavior or unpredictable hostility; and/or 6. Repeated instances of violations of policies and procedures.

5.12.2. Observation, such as direct observation of use and/or physical symptoms of being under the influence of a controlled substance.

5.13. The Director may place the employee on administrative leave, pending disciplinary action, upon being notified of a positive and/or a failed random, reasonable suspicion or post-accident drug test result.

5.14. Employees who are the subject of a positive and/or a failed random, reasonable suspicion or post-accident drug test shall have the right to request that the split specimen be tested.

5.14.1. Testing of the split specimen shall be performed at the sole expense of the employee at the prevailing rate then charged by the testing company and any such request must be made in writing to the Director by the employee immediately upon notification of an initial positive test result.

5.14.2. A different SAMHSA accredited laboratory may be used to perform the test of the split specimen if so requested by the employee.

5.14.3. The test of the split specimen will be performed immediately upon receipt of the request and the results thereof will be reported to the Director by the MRO as soon as they are available.

5.14.4. In the event the test of the split specimen is a negative test result, OMHST shall reimburse the affected employee all reasonable costs associated with the test of the split specimen.

5.15. The Director, at his/her discretion, may afford the employee an opportunity to seek professional medical and/or psychological treatment for substance abuse for a first positive and/or failed random, reasonable suspicion or post-accident drug test. The employee may be required to agree, in writing, to:

a. Immediately enroll in a substance abuse treatment program approved by the Director;

b. Sign a medical records release authorization, which relates solely to the employees treatment for substance abuse and provide timely progress reports to the Director;

c. Successfully complete the substance abuse treatment program; and d. Submit to unannounced drug tests for a period of not less than twelve (12) calendar months.

5.16. The Director may initiate disciplinary action against an employee who violates a provision of this rule even though the affected employee has been afforded an opportunity to seek professional medical and/or psychological treatment.

5.17. For purposes of a positive test for THC, the employee may not rely upon a medical prescription or other type of medical permission for marijuana, including a valid identification card issued under W. Va. Code 16A-5-1 et seq. authorizing the employee to access medical cannabis under the West Virginia Medical Cannabis Act.

5.18. For purposes of a positive test for THC, the employee may not excuse such a positive test based upon the fact that the THC came entirely from a legal CBD product or any other legal product.

5.19. In the event an employees initial and/or split specimen tests positive and/or the employee fails the drug screening due to having refused to submit a sample or possessing an adulterated sample, and/or the employee submitted a substituted or an adulterated sample, then the Director shall issue an immediate temporary suspension of all certifications held by the employee pending a hearing before the Board of Appeals pursuant to W. Va. Code 22A-1A-2.

5.20. All individual records pertaining to random, pre-employment, post-accident and reasonable suspicion drug tests of affected employees shall be deemed confidential medical records and shall not be disseminated except at the express direction of the Director, and without the express written consent of the employee.

5.21. The Director may immediately terminate any employee who violates this rule where such termination of the employee is deemed by the Director to be in the best interest of OMHST or the public in accordance with the requirements set forth in W. Va. Code 22A-1-1 et seq.

5.22. All successful applicants for the position of mine inspector, mine safety instructor, surface mine inspector or electrical inspector shall submit to a pre-employment drug screening test, as set forth in this rule and in the same manner as current employees subject to random, post-accident and reasonable suspicion drug tests, and shall successfully pass such drug screening test before assuming the responsibilities and duties of the applicants respective job.

5.23. In the event a successful applicant for the position of mine inspector, mine safety instructor, surface mine inspector or electrical inspector, and who has not assumed the responsibilities and duties of his or her job, fails the pre-employment drug test, including any subsequent drug screening test utilized to verify the results of the first failed drug screening test, such failure will constitute cause to immediately dismiss the applicant.

Series 14 Rule Pertaining to the Office of Miners' Health, Safety and Training Application Process for the West Virginia Innovative Mine Safety Technology Tax Credit Act

W. Va. Code R. § 56-14-1 General

1.1. Scope. -- This rule governs the application process for the West Virginia Innovative Mine Safety Technology Tax Credit Act.

1.2. Authority. -- W. Va. Code 11-13BB-13.

1.3. Filing Date. -- April 24, 2024.

1.4. Effective Date. -- April 24, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2029.

1.6. Applicability. -- This rule shall apply to all taxpayers making application to the West Virginia Office of Miners Health, Safety and Training for certification of the tax credit authorized under W. Va. Code 11-13BB-1 et seq.

W. Va. Code R. § 56-14-2 Definitions

2.1. Unless the context in which a word or phrase appears requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2.

2.2. The term Director shall mean the Director of the Office of Miners Health, Safety and Training provided for in W. Va. Code 22A-1-3.

2.3. The term Mine Safety Technology Tax Force shall mean the Mine Safety Technology Task Force provided for in W. Va. Code 22A-11-2.

W. Va. Code R. § 56-14-3 Application and Certification Process

3.1. Until the Director has received the list of approved innovative mine safety technologies and/or safety equipment from the Mine Safety Technology Task Force, no applications for the tax credit shall be accepted.

3.2. Once the Director has received the list of approved innovative mine safety technologies and/or safety equipment from the Mine Safety Technology Task Force, the Director shall approve or amend the list in accordance with the requirements of W. Va. Code 11-13BB-4. The Director shall publish the approved or amended list in the State Register within 30 days.

3.3. The application for tax credit shall be available at all regional offices of the Office of Miners Health, Safety and Training and shall also be available on the website https://minesafety.wv.gov.

3.4. The application requires the applicant to provide the following information:

3.4.1. Applicants name, address and telephone number,

3.4.2. Applicants taxpayer identification number,

3.4.3. Mine name and permit number,

3.4.4. Description of the approved mine safety technology and/or safety equipment,

3.4.5. A purchase order or other means of proof that the innovative mine safety technology and/or safety equipment is in use at the mine,

3.4.6. Whether that mine safety technology and/or safety equipment is listed on the approved list published by the Director,

3.4.7. The applicants qualified investment in the mine safety technology and/or safety equipment and the amount of the allowable credit,

3.4.8. The amount the applicant seeks to apply to the applicable tax years,

3.4.9. If the entity seeking the tax credit is a corporation, the application shall list all officers of the corporation (as registered with the West Virginia Secretary of State) together with the last 4 digits of each officers social security number and be signed by an officer of the corporation,

3.4.10. If the entity seeking the tax credit is a limited liability company, the application shall list all members of the limited liability company (as registered with the West Virginia Secretary of State) together with the last 4 digits of each members social security number and be signed by one of its members,

3.4.11. If the entity seeking the tax credit is a sole proprietor (as registered with the West Virginia State Tax Department) together with the last 4 digits of the sole proprietors social security number and the application shall be signed by the owner of said sole proprietorship,

3.4.12. The signatures on the application shall be notarized.

3.5. The applicant shall pay a $100.00 application fee at the time the application is submitted. Applications will not be processed if the application fee is not submitted with the application.

3.6. Applicants who desire to submit an application for certification shall hand deliver an original and 1 copy of the completed application to the West Virginia Training and Conference Center, 431 Running Right Way, Julian, WV 25529, for time stamping. The copy shall be time stamped and returned to the person delivering the application as evidence of the date and time filed.

3.7. Applicants who desire to submit an application for certification electronically shall email the application to the email address found on the Office of Miners Health, Safety and Trainings website and pay the application fee utilizing the E-pay system for online orders and payments found on the same website: https://minesafety.wv.gov.

3.8. After the application is submitted, the Office of Miners Health, Safety and Training shall complete a computer search to determine whether any entity, officer, member or sole proprietor listed on the application owes delinquent assessments. If there are delinquent assessments owed to the Office of Miners Health, Safety and Training, the application shall be refused and the application and the application fee shall be returned to the applicant by regular mail. If the applicant pays the delinquent assessments and returns the application with the application fee, the application will be considered a new application and processed accordingly.

3.9. All incomplete applications and application fees shall be returned to the applicant by first class United States mail.

3.10. All completed applications shall be processed, and the tax credit allocated based upon the order in which it was received.

3.11. A Letter of Certification shall be sent by first class United States mail to each eligible applicant showing the amount of the allocated tax credit.

3.12. When the $2,000,000 of authorized tax credit is exhausted, the remaining eligible applicants shall be sent a letter by first class United States mail informing them that the authorized tax credit amount has been exhausted.

W. Va. Code R. § 56-14-4 Objections and Hearings

4.1. An applicant determined to be ineligible for a tax credit or whose application is rejected may file written objections with the Director. An applicant who files a written objection pursuant to this section shall be afforded an opportunity to contest the Directors determination and the opportunity to present testimony and enter evidence in support of its position.

4.2. An objection shall be deemed timely filed if received by the Office of Miners Health Safety and Training within 10 calendar days of the date of the Directors determination.

4.3. A hearing shall be conducted in accordance with the contested cases provisions of W. Va. Code 29A-5. However, notwithstanding time requirements for notice and hearing contained W. Va. Code 29A-5-1, the following time requirements shall govern the expedited administrative hearings held pursuant to this section:

4.3.1. An expedited administrative hearing shall be held within 10 days of an applicants timely request for a hearing.

4.3.2. Evidence from any party must be submitted to the hearing examiner before, or at, the administrative hearing.

4.3.3. Hearings shall not be continued except by agreement of the parties or upon the most compelling of good cause. Good cause determinations will be strictly resolved in view of the legislative mandate to expedite the resolution of the issue.

4.3.4. The hearing officer shall issue a decision within 10 days of the date of the administrative hearing.

4.4. Either party may appeal the hearing officers decision to the Intermediate Court of Appeals in accordance with W. Va. Code 51-11-4.

Series 17 Rule Governing Organization and Implementation Procedures for Control of Coal Dust, Rock Dust Standards

W. Va. Code R. § 56-17-1 General

1.1. Scope. -- These rules establish the procedure whereby the Office of Miners Health, Safety and Training shall implement the provisions of W. Va. Code 22A‑2‑24 pertaining to the organization and implementation procedures for control of coal dust, rock dust standards.

1.2. Authority. -- W. Va. Code 22A-1-6 and 22A-2-24.

1.3. Filing Date. -- July 27, 2023.

1.4. Effective Date. -- August 31, 2023.

W. Va. Code R. § 56-17-2 Definitions

2.1. Unless the context in which a word or phrase appears clearly requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2. 2.2 Coal dust shall mean the fraction of very fine coal particles deposited throughout an underground mine by air currents and transport that pass through a standard 20-mesh per linear inch sieve differentiated from loose coal which is larger in size and shall not pass through a standard 20-mesh per linear inch sieve. Coal dust is not easily wetted and accumulations less than fully saturated (thirty (30) percent moisture) are able to participate in an explosion.

2.3. Excessive Accumulation of Coal Dust shall mean an accumulation of coal dust in excess of twenty (20) percent total content within the top one eighth inch (1/8") of mine dust located on the surface of the mine floor and any rib or structures.

2.4. Rock dust shall mean pulverized stone used to cover coal dust and thereby render accumulations of coal dust inert. Rock dust shall be composed of calcite, dolomite, or an equivalent mineral one hundred (100) percent of which shall pass through a standard 20-mesh per linear inch sieve and at least seventy (70) percent of which shall pass through a standard 200-mesh per linear inch sieve. Rock dust shall not contain more than a total of five (5) percent free and combined silica (SiO2) and no more than five (5) percent combustible matter. Rock dust shall not exceed regulatory respirable dust levels when applied and particles when wetted and dried shall not cohere to form a cake which may not disperse into separate particles by a blast of air.

2.5. OMHST shall mean the Office of Miners Health, Safety and Training.

W. Va. Code R. § 56-17-3 Control of Coal Dust

3.1. In all mines, any accumulation of coal dust containing less than thirty (30) percent moisture located in any operating section, haulageway, conveyor, or back entry shall be rock dusted or dust allayed in order to render said accumulation inert.

3.2. Rock dust shall be applied and maintained by manual or mechanical means upon the surface of the mine floor, roof and ribs of all operating sections, haulageways and parallel entries regardless of connection intervals and in all back entries. Rock dust shall be applied to include the last open crosscut of rooms and entries, and to within forty (40) feet of faces.

3.3. Rock dust shall be maintained in such quantity that the incombustible content of the mine dust that could initiate or propagate an explosion shall not be less than eighty (80) percent and the incombustible content in return entries shall not be less than eighty (80) percent.

W. Va. Code R. § 56-17-4 Use of Moisture Control Coal Dust

4.1. A location in a mine shall be considered too wet for evaluation of rock dust standards when the mine dust present in the mine, operating section, haulageway, conveyor, or back entry contains in excess of thirty (30) percent moisture.

4.2. It is permissible to gauge a too wet condition in a mine by taking the top one eighth (1/8) inch of mine dust and reasonably squeezing said dust in the hand. If liquid flows between the fingers upon exerting reasonable pressure or a wet residue is left in the hand as a result, then the moisture content shall be considered too wet. If no liquid flows between the fingers upon exerting reasonable pressure and no wet residue is left in the hand, then the moisture content is not sufficient. A visual observation without testing in the above described manner is not sufficient.

W. Va. Code R. § 56-17-5 Coal Dust Survey Implementation Procedure

5.1. The Director, or his/her designated authorized representative, shall conduct a coal dust survey of each mine by collecting samples at locations that are representative of the conditions found in said mine. The coal dust survey shall be conducted at least twice each year or more frequently at the discretion of the Director.

5.2. The detailed procedures for the performance of the coal dust survey shall be published in the coal-dust practices survey program and posted on the OMHST website and are incorporated by reference herein. Modifications of these procedures may be made by the Director after consultation with the Board of Coal Mine Health and Safety. The OMHST shall make copies of the coal-dust practices survey program documentation available to miners and operators upon request.

5.3. Each coal dust survey shall include, at a minimum, a random sample location no more than one thousand (1,000) feet from the working section loading point in a room and pillar mine and no more than one thousand (1,000) feet from the tailgate or maingate in a longwall mine. At the discretion of the Director or an Inspector, samples may be taken at other locations based upon proximity to a potential ignition source or based upon the appearance that conditions in the mine are substantially inferior to minimum mandatory coal dust requirements.

5.4. All entries in the section shall be sampled in a line roughly perpendicular to the direction of the entry in which the initial sample was taken, but no more than three (3) crosscuts inby or outby such a line, with the location selected being the same distance from the inby edge of the pillar as that in the initial entry.

5.5. Samples will be taken from the top one-eighth (1/8) inch of material in a band at the location selected. The material shall be separately collected from the ribs and roof from that of the floor. Each sample of collected material shall be sieved through a standard 20-mesh per linear inch sieve unless it retains sufficient moisture to prevent passing the sieve and is not considered too wet. If the sample is too wet to sieve, then the un-sieved material shall be placed in the sample bag.

5.6. Each sample shall be placed in an OMHST Mine Dust Sample Bag and sealed. The data sheet located on each OMHST Mine Dust Sample Bag which provides the unique bag identification number shall be completed and placed in the OMHST Mine Dust Sample Bag prior to being sealed. The surveyor shall complete the chain of custody portion of the OMHST Mine Dust Sample Bag to include his or her name and the date the sample was collected. The surveyor shall maintain custody of the OMHST Mine Dust Sample Bag until it is either delivered to the coal dust lab or handed to the clerk at the United States Post Office for shipment to the coal dust lab.

W. Va. Code R. § 56-17-6 Coal Dust Sample Analysis

6.1. Each coal dust sample shall be analyzed utilizing a thermogravimetric analysis procedure which allows for the determination of coal dust and rock dust ratios.

6.2. Details concerning the thermogravimetric analysis procedure shall be published in the OMHST coal-dust practices survey program.

6.3. A quality control process consisting of internal duplicate samples and duplicates sent to outside laboratories shall be established to ensure the accuracy of the analysis.

6.4. Samples received from the surveyor shall become the responsibility of the authorized laboratory technician who shall complete the chain of custody portion of the OMHST Mine Dust Sample Bag and maintain the samples in a secure manner until notified by the Director that they are no longer required.

W. Va. Code R. § 56-17-7 Enforcement

7.1. Upon completion of the analysis, the authorized laboratory technician shall generate a report which shall be forwarded to the Director and identify any samples that fail to meet the minimum coal dust and rock dust ratio.

7.2. If a sample fails to meet the minimum coal dust and rock dust ratio, then the Director shall notify the operator and issue a notice of violation with an appropriate abatement period.

7.3. At the expiration of the abatement period the Director shall cause a re-surveying of the affected area of the mine utilizing the random sampling methodology anchored by the then location of the working section loading point in a room and pillar mine or no more than one thousand (1,000) feet from the tailgate or maingate in a longwall mine. The samples from the re-survey shall have priority in the thermogravimetric analysis laboratory and the results shall be reported to the Director upon completion.

7.4. At the discretion of the Director repeated or serious violations of coal dust and rock dust ratios may be elevated in severity up to and including an imminent danger (as defined in W. Va. Code 22A‑1‑2(a)(5)).

7.5. The Director may request that any operator provide records establishing the quantity of bulk and bag rock dust purchased for a period not to exceed the immediately preceding six (6) month period.

W. Va. Code R. § 56-17-8 Organization

8.1. Coal dust and rock dust surveying shall be conducted by an inspector or a dust surveyor who is designated by the Director as an authorized representative. Individuals designated as dust surveyors are authorized by the Director only to conduct those activities necessary for the Director to determine compliance with W. Va. Code 22A-2-24 and W. Va. Code R. 56-17-1 et seq.

8.2. Thermogravimetric analysis shall be conducted by authorized dust laboratory technicians. Individuals designated as dust laboratory technicians are authorized by the Director to conduct such activities as are necessary for the Director to determine compliance with W. Va. Code 22A-2-24 and W. Va. Code R. 56-17-1 et seq.

Series 18 Rule Governing the Program for the Sharing of Information Between Employers

W. Va. Code R. § 56-18-1 General

1.1. Scope. -- This rule establishes a program for the sharing of information between employers concerning the identity of individuals having been decertified due to a violation of a substance abuse policy and testing program as mandated by W. Va. Code 22A-1-4(b)(12) and modified by subsequent rules. This rule is promulgated for the purpose of protecting and enhancing public safety.

1.2. Authority. -- W. Va. Code 22A-1-4(b)(12).

1.3. Filing Date. -- April 24, 2024.

1.4. Effective Date. -- April 24, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2029.

W. Va. Code R. § 56-18-2 Definitions

2.1. Unless the context in which a word or phrase appears requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2.

2.2. Code. The term Code shall mean the West Virginia Code of 1931, as amended.

2.3. Director. The term director shall mean the Director of the Office of Miners Health, Safety and Training and shall include his/her authorized representatives where applicable.

2.4. Employer. The term employer shall mean all operators, independent contractors, subcontractors, or otherwise that employ certified persons who work in mines, or employees who as part of their employment are regularly present at a mine and who are employed in a safety-sensitive position.

2.5. Mine. The term mine shall have the meaning set forth in W. Va. Code 22A-1-2(a)(6) and shall include any underground coal mine, surface coal mine, coal preparation plant, coal loadout, or river coal loadout.

2.6. Certified Person. The term certified person shall have the meaning set forth in W. Va. Code 22A-1-2(d)(3).

2.7. Safety-Sensitive Position. The term safety-sensitive position shall mean an employment position where the employees job responsibilities include duties and activities that involve the personal safety of the employee or others working at the mine.

2.8. Substance Abuse Policy and Testing Program. The term substance abuse policy and testing program shall include, at a minimum, a breath test for the presence of alcohol and the 10-panel urine test required by W. Va. Code 22A-1A-1(a)(1) and established for the purpose of detecting the illicit substances identified therein.

W. Va. Code R. § 56-18-3 Responsibilities of the Director

3.1. The director shall compile and maintain a list of all certified persons who are temporarily or permanently decertified for failing a substance abuse policy and testing program or refusing to submit to a substance abuse policy and testing program.

3.2. A list of those persons identified in Section 3.1. of this rule shall include the certified persons name, certification number(s) and date of decertification and shall be made available on the Office of Miners Health, Safety and Training website: https://minesafety.wv.gov.

3.3. Once a decertified person has his/her certification(s) reinstated, his/her name shall be removed from the list identified in Section 3.2.

W. Va. Code R. § 56-18-4 Alternative Method for Confirming Certified Person Status

4.1. Any employer may request in writing that the director identify whether a specific certified person is currently on the list identified in Section 3.1. of this rule, or if his/her certification is in good standing.

4.2. Each request shall be limited to 1 specifically identified person and shall contain identifying information unique to the person including legal name, date of birth and the last 4 digits of his/her social security number.

4.3. Requests may be filed either in person at the office of the director, by facsimile, by mail, or by email.

4.4. Each request shall be on the employers letterhead and signed by the employers designated representative.

4.5. The director shall respond to each request, in writing, as soon as practicable, but within no later than 5 business days of receipt of the request.

Series 19 Substance Abuse Screening, Standards and Procedures

W. Va. Code R. § 56-19-1 General

1.1. Scope. -- This rule applies to every employer of certified persons, as that term is defined in W. Va. Code 22A-1-2(d)(3), and to every employer of employees who as part of their employment are regularly present at a mine and who are employed in a safety-sensitive position, as that term is defined in W. Va. Code 22A-1A-1(e).

1.2. Authority. -- W. Va. Code 22A-1A-2(b) and (c).

1.3. Filing Date. -- April 24, 2024.

1.4. Effective Date. -- April 24, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2029.

W. Va. Code R. § 56-19-2 Purpose

2.1. Purpose. -- The purpose of this rule is to implement the mandate of W. Va. Code 22A-1A-1 et seq.

W. Va. Code R. § 56-19-3 Definitions

3.1. Unless the context in which a word or phrase appears requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2.

3.2. Adulterated Specimen. The term adulterated specimen shall mean a specimen that has been altered as evidenced by test results showing that the specimen contains a substance that is not a normal constituent or containing an endogenous substance at a concentration that is not a normal physiological concentration.

3.3. Alcohol Testing Form. The term alcohol testing form shall mean the U.S. Department of Transportations Alcohol Testing Form (Non-DOT) or a form that substantially conforms with the format set forth in the DOT alcohol testing form.

3.4. Board of Appeals. The term Board of Appeals shall mean the Board of Appeals created pursuant to W. Va. Code 22A-5-1 et seq. and referred to in W. Va. Code 22A-1A-2.

3.5. Breath Test or Breath Test for Alcohol. The term breath test or breath test for alcohol shall mean a chemical test of a persons breath to determine the amount of alcohol he/she has consumed, as provided in 49 CFR Part 40, Subpart M, taken using an evidential breath testing device listed on the National Highway Traffic Safety Administration (NHTSA) most current Conforming Products List and conducted by a breath alcohol technician meeting the training requirements found in 49 CFR Part 40, Subpart J.

3.6. Cannabinoids/THC. The term Cannabinoids/THC shall mean THC from any source, whether legal or illegal.

3.7. Certified Person. The term certified person shall have the meaning set forth in W. Va. Code 22A-1-2(d)(3).

3.8. Code. The term Code shall mean the West Virginia Code of 1931, as amended.

3.9. Director. The term Director shall mean the Director of the Office of Miners Health, Safety and Training, and shall include his/her authorized representatives where applicable.

3.10. Drug Testing Contractor. The term drug testing contractor shall mean any firm, corporation, partnership, or individual performing breath alcohol tests or 10 panel split sample urine drug tests pursuant to this rule.

3.11. Duly Licensed, Mental Health Professional. The term duly licensed, mental health professional shall mean 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.

3.12. Employer. The term employer shall mean all operators, independent contractors, subcontractors, or otherwise that employ certified persons who work in mines or employ employees who as part of their employment are regularly present at a mine and who are employed in a safety-sensitive position.

3.13. Hazard Training. The term hazard training shall mean information or instructions on the site specific hazards a person could be exposed to while at the mine, as well as applicable emergency procedures.

3.14. Independent Contractor. The term independent contractor shall mean any firm, corporation, partnership, or individual that contracts to engage in the extraction, production, hauling, loading, processing or preparation activities associated with a mine as defined in Section 3.16. of this rule.

3.15. Medical Review Officer. The term medical review officer shall mean a licensed physician with knowledge of substance abuse disorders, laboratory testing, chain of custody, collection procedures, and the ability to verify positive, confirmed test results. The medical review officer is responsible for receiving and reviewing laboratory results generated by an employers drug testing program and evaluating medical explanations for certain drug test results and shall possess the necessary medical training to interpret and evaluate a positive test result in relation to the persons medical history or any other relevant biomedical information.

3.16. Mine. The term mine shall have the meaning set forth in W. Va. Code 22A-1-2(a)(6) and shall include any underground coal mine, surface coal mine, coal preparation plant, coal loadout, or river coal loadout.

3.17. Operator. The term operator shall mean any firm, corporation, partnership, or individual operating any coal mine or part thereof, as defined in Section 3.16. of this rule, or engaged in the construction of any facility associated with a coal mine.

3.18. Pre-employment Testing. The term pre-employment testing shall mean the substance abuse testing of any certified person or person to be employed in a safety-sensitive position either prior to hiring or upon hiring by a new operator or new independent contractor, the rehiring of any certified person or person employed in a safety-sensitive position by an operator or independent contractor following a termination of the employment relationship, or transferring to a West Virginia mine from an employers out-of-state mine to the extent that the substance abuse test required by the employer in the other jurisdiction does not comply with the minimum standards for substance abuse testing required by this rule.

3.19. Random Testing. The term random testing shall mean that each person subject to testing has a statistically equal chance of being selected for testing at random and at unscheduled times. The selection of persons for random testing shall be made by a scientifically valid method, such as a random number table or a computer-based random number generator that is matched with the persons social security number, payroll identification number, or other comparable identifying number. A random test shall be at least 25% of the employees working at a mine or facility annually. Random testing shall be conducted at least 4 times annually.

3.20. Refusal. The term refusal shall mean a refusal to submit to a drug and alcohol test required by the employer under the substance abuse policy and testing program as defined in Section 3.24. A refusal shall be consistent with the standards provided for in 49 CFR Part 40. If the drug and alcohol test is required by the employer, it is not a defense that the employee or person subject to a pre-employment test believed that the required drug and alcohol testing was not following the standards and procedures provided for in 49 CFR Part 40.

3.21. Safety-Sensitive Position. The term safety-sensitive position shall mean an employment position where the employees job responsibilities include duties and activities that involve the personal safety of the employee or others working at the mine.

3.22. Serious Accident. The term serious accident shall mean an event at a mine which causes bodily injury to an individual which requires such individual to be admitted to a medical facility overnight for reasons other than strains, sprains or observation as determined by a physician.

3.23. Split Sample. The term split sample shall mean a part of the urine specimen that is sent to a first laboratory and retained unopened, and which is transported to a second laboratory in the event that the employee requests that it be tested following a verified positive test of the primary specimen or a verified adulterated or substituted test result. Said testing shall be conducted in accordance with the standards and procedures of the United States Department of Transportations rule, 49 CFR Part 40, which may be amended from time to time by the Office of Miners Health, Safety and Training through legislative rule.

3.24. Substance Abuse Policy and Testing Program. The term substance abuse policy and testing program shall include pre-employment testing, random testing, and any other testing done to enhance mine safety. Such drug and alcohol testing shall include, at a minimum, a chemical test of breath to determine the presence of alcohol and a 10-panel split sample urine test that complies with the requirements of W. Va. Code §22A-1A-1 et seq. and this rule.

3.25. Substance Abuse Treatment Program. The term substance abuse treatment program shall mean at least 6 months of substance abuse treatment under the care of a duly licensed mental health professional which includes at least 6 monthly random drug and alcohol tests.

W. Va. Code R. § 56-19-4 Certification of Employees in Safety-Sensitive Positions

4.1. No employee of an employer working in a safety-sensitive position may work or be employed unless he or she possesses a safety-sensitive certification issued by the Office of Miners Health, Safety and Training. Any employee who currently possesses another mining certification issued by the Office of Miners Health, Safety and Training shall not be required to obtain a safety-sensitive certification.

4.2. Every employer of an employee who works in a safety-sensitive position shall ensure that the employee has obtained the safety-sensitive certification issued by the Office of Miners Health, Safety and Training.

4.3. A safety-sensitive certification shall be issued to any person who provides proof that he or she has received the 24-hour MSHA training when required by MSHA, completes an application as prescribed by the Director, and shows a valid drivers license, valid passport, or valid state DMV issued photo ID. Any other personnel employed by an operator or independent contractor whose job does not require a miner certification or 24-hour MSHA training shall be eligible to receive a safety-sensitive certification by making application, showing proof that he or she has successfully completed hazard training, and shows a valid drivers license, valid passport, or valid state DMV issued photo ID.

4.4. Safety-sensitive certifications may be obtained at any regional office of the Office of Miners Health, Safety and Training.

4.5. The application for a safety-sensitive certification requires the following information:

4.5.1. Applicants name, address, telephone number, social security number, date of birth, and applicants signature.

4.5.2. Employers company name, mine name, WV permit number, address, and telephone number.

4.5.3. Employment dates.

4.5.4. A notarized signature of an official of the employer.

4.6. In the event an application for a safety-sensitive certification is denied, the applicant may request a hearing before the Director.

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 Directors decision with the Intermediate Court of Appeals, pursuant to the provisions of W. Va. Code 51-11-4.

4.8. The Director may charge a $10.00 fee for the issuance of a safety-sensitive certification.

4.9. All persons currently having a certification issued by the Office of Miners Health, Safety and Training who desire to receive a safety-sensitive certification may receive such certification by completing the safety-sensitive certification application and paying the $10.00 fee.

4.10. Every employer shall keep a current list of all employees occupying safety-sensitive positions available for review by the Director or his/her authorized representative.

4.11. The Director may exempt any person responding to a mine emergency or providing rescue services from the requirement that he or she shall have a safety-sensitive certification prior to performing any mine emergency or rescue services.

W. Va. Code R. § 56-19-5 Duties of Employers

5.1. Every employer shall implement a substance abuse policy and testing program which shall be administered to its certified and safety-sensitive employees.

5.2. Every employers program shall at a minimum comply with all state mine laws relevant to substance abuse screening, standards and procedures.

5.3. Employers shall ensure that all breath alcohol tests and drug tests are performed by a drug testing contractor as defined in Section 3.10. of this rule and that the drug testing contractor is aware of and complies with Sections 7.1. and 7.2. of this rule.

5.4. Every employer shall have a pre-employment and random substance abuse policy and testing program which shall, at a minimum, include a 10-panel split sample urine test for the following substances:

5.4.1. Amphetamines,

5.4.2. Cannabinoids/THC,

5.4.3. Cocaine,

5.4.4. Opiates,

5.4.5. Phencyclidine (PCP),

5.4.6. Benzodiazepines,

5.4.7. Propoxyphene,

5.4.8. Methadone,

5.4.9. Barbiturates, and

5.4.10. Synthetic narcotics.

5.5. In addition, every employer shall include, as part of its substance abuse screening policy and program, a chemical test of breath for alcohol. No persons blood alcohol level shall meet or exceed .04 concentration at the time of testing.

5.6. The alcohol confirmation test shall be a chemical test of breath as provided in 49 CFR Part 40, Subpart M, taken using an evidential breath testing device listed on the National Highway Traffic Safety Administrations (NHTSA) most current Conforming Products List and conducted by a breath alcohol technician meeting the training requirements found in 49 CFR Part 40, Subpart J.

5.7. The substance abuse policy and testing program shall require that the 10-panel split sample urine test be conducted in accordance with the standards and procedures set forth in the United States Department of Transportations rule found at 49 CFR Part 40 and collected by individuals who are certified as complying with standards and procedures set forth in the United States Department of Transportations rule found at 49 CFR Part 40.

5.8. Initial and split samples shall be tested by laboratories certified by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA) for collection and testing.

5.9. In the event a person desires to challenge the results of his or her initial sample test result, that person shall have the right to have the split sample tested by another laboratory certified by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA). The cost associated with the testing of the split sample shall be the responsibility of the person challenging the initial sample test results.

5.10. Every employer shall review its substance abuse testing program with all persons required to be tested at the time of employment, upon a change in the program, and annually thereafter.

5.11. Every employer shall provide new and current employees with information about the mandatory substance abuse policy and testing program and inform each employee of his or her rights and responsibilities under the program and that refusal to comply with any drug and alcohol testing required by the employer shall constitute grounds for decertification and shall result in the employer notifying the Director of said refusal in accordance with Section 5.12. of this rule. A record of such review shall be maintained at the mine and made available to an authorized representative of the Director upon request.

5.12. Every employer shall notify the Director, on a form prescribed by the Director, within 7 days of any of the following:

5.12.1. Any positive drug or alcohol test of a certified person. However, for purposes of determining whether a drug test is positive the certified employee may not rely on a prescription dated more than 1 year prior to the date of the drug test result;

5.12.2. The refusal of a certified person to submit a sample;

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

5.12.4. A certified person submitting a substituted sample or an adulterated sample.

5.13. Failure of an employer to report a failed drug and alcohol test as set forth in Section 5.12. within 7 days of being notified of the failed drug and alcohol test shall not create any procedural defense for a certified person who has failed the drug and alcohol test.

5.13.1. For purposes of a positive test for THC, the certified person may not rely upon a medical prescription or other type of medical permission for marijuana, including a valid identification card issued under W. Va. Code 16A-5-1 et seq. authorizing the certified person to access medical cannabis under the West Virginia Medical Cannabis Act.

5.13.2. For purposes of a positive test for THC, the certified person may not excuse such a positive test based upon the fact that the THC came entirely from a legal CBD product or any other legal product.

5.14. 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 as determined by the Medical Review Officer and the chain of custody form. If the employees breath test for alcohol meets or exceeds .04 at the time of testing, the alcohol testing form shall be submitted with the notification. Other supporting documentation may be required as deemed necessary by the Director.

5.15. A notice, pursuant to Section 5.12. of this rule, 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 pursuant to W. Va. Code 22A-1A-2.

5.16. Any employer may develop or maintain a drug and alcohol abuse policy, testing program or substance abuse program that exceeds the minimum requirements set forth in Section 5.4. of this rule. The provisions of this rule shall not be construed to require an employer to alter, amend, revise or otherwise change, in any respect, a previously established substance abuse screening policy and program that meets or exceeds the minimum requirements set forth in this rule.

5.17. Every employer shall maintain a record of substance abuse testing results for each person tested which shall be kept confidential, except that the records shall be open to inspection by the Director or when compelled by a court of competent jurisdiction. Each employer shall maintain records of verified positive drug or alcohol test results and employee refusals to take mandatory tests for a minimum of 5 years.

5.18. No part of this rule is intended to prohibit an employer from implementing a policy requiring a certified person or a person in a safety-sensitive position to take a substance abuse test or chemical test of breath for the presence of alcohol if the employer has a reasonable suspicion that the person is under the influence of a controlled substance or alcohol.

5.19. Every employer shall require any person involved in a serious or fatal accident to be drug and alcohol tested immediately after the accident.

5.20. Any employee involved in an accident that results in physical injuries or damage to equipment or property may be subject to a drug test by his or her employer.

5.21. A random test shall be at least 25% of the employees working at a mine or facility annually. Random testing shall be conducted at least 4 times annually.

W. Va. Code R. § 56-19-6 Responsibilities of the Director

6.1. Upon receipt of a notice as required by Section 5.12. of this rule and upon verification that the pre-employment applicant or the employee tested positive by urine test for at least 1 of the 10 substances identified therein or had a blood alcohol level at or in excess of .04 concentration at the time of testing, the Director shall issue an immediate temporary suspension of all certifications held by the person pending a hearing before the Board of Appeals pursuant to W. Va. Code 22A-1A-2. The Director shall mail, by certified mail, to the person notice of the temporary suspension and that he or she has the right to pursue 1 of the following options:

6.1.1. Appeal the suspension to the Board of Appeals within 30 days, or

6.1.2. Notify the Director within 30 days that the temporarily suspended person intends to enter into a Treatment Plan Agreement sanctioned by the Board of Appeals as set forth in Section 9 of this rule. Costs of the evaluation, treatment and drug and alcohol tests shall be the responsibility of the temporarily suspended person.

6.2. The certified mailing shall also inform the individual that failure to file an appeal pursuant to Subsection 6.1.1. or failure to notify the Director of that individuals intent to comply with Subsection 6.1.2. of this rule within 30 days could result in the Board of Appeals suspending all certifications issued to that individual for a period of not less than 3 years and that the individual shall remain ineligible for any other certification issued by the Office of Miners Health, Safety and Training during the suspension period.

6.3. The Director shall immediately and temporarily suspend any certification issued by the Office of Miners Health, Safety and Training or any safety-sensitive certification upon receipt of a suspension or revocation of a certified persons certificate as a miner or other miner specialty in another jurisdiction by the applicable regulatory or licensing authority for substance abuse related matters. The immediate and temporary suspension shall remain in effect until such time as the certified persons certification is reinstated in the other jurisdiction or modified by the Board of Appeals pursuant to W. Va. Code 22A-1A-2.

6.4. The Director shall issue an immediate temporary suspension of a certified persons West Virginia certification(s), including any safety-sensitive certification, under the following circumstances:

6.4.1. The person tests positive on a urine test for any of the 10 substances identified in Section 5.4. of this rule and is verified to have failed the test by the medical review officer.

6.4.2. The persons chemical test of breath shows a blood alcohol level at or in excess of .04 concentration at the time of testing.

6.4.3. The person possesses an adulterated specimen or the drug test results demonstrate the submission of an adulterated specimen.

6.4.4. The person possesses a substituted specimen or the drug test results demonstrate the submission of a substituted specimen.

6.4.5. The person refuses to submit to a drug or alcohol test.

6.5. Any person who has his or her certification(s) temporarily suspended by the Director may file an appeal of the temporary suspension with the Board of Appeals. The notice of appeal shall be in writing and filed with the Board of Appeals within 30 days of issuance of the notice of suspension.

6.6. Upon receipt of a notice as required by Section 5.12. of this rule of a person having failed a substance abuse test for a second time, the Director shall issue an immediate temporary suspension of all certifications held by the person and shall immediately initiate proceedings for the permanent revocation of all certifications held by the person pending a hearing before the Board of Appeals pursuant to W. Va. Code 22A-1A-2.

6.7. No certification may be permanently revoked until such time as the individual has been granted adequate opportunity for a hearing before the Board of Appeals conducted in accordance with W. Va. Code 22A-1A-2.

6.8. Records of substance abuse and drug testing, written or otherwise, received by the Office of Miners Health, Safety and Training, its employees, agents and representatives are confidential communications and exempt from disclosure under W. Va. Code 29B-1-1, except where disclosure is authorized pursuant to 22A-1A-3.

W. Va. Code R. § 56-19-7 Drug Testing Standards

7.1. The employer shall ensure that its drug testing contractor is registered with the Office of Miners Health, Safety and Training pursuant to 36 CSR 36-20-4 and is aware of this section of the rule and complies with the following standards for collection and testing of samples:

7.1.1. The drug testing contractor shall comply with all provisions found in 36 CSR 20-1 et seq.

7.1.2. The drug testing contractor shall follow all standards, procedures, and protocols set forth by the United States Department of Transportations rule, 49 CFR Part 40, for the collection of urine samples and chemical test of breath for the presence of alcohol.

7.1.3. Collected samples shall be tested by laboratories certified by the United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration (SAMHSA) for collection and testing.

7.1.4. The drug testing contractors drug testing protocol shall be a 10-panel split sample urine test containing the substances identified in Section 5.4. of this rule.

7.1.5. The drug testing contractor shall provide a medical review officer who shall possess the ability and medical training necessary to verify positive confirmed test results and evaluate those results in relation to a certified persons medical history or other biomedical information and follow all procedures outlined in the SAMHSA medical review officer manual. However, for purposes of determining whether a drug test is positive the certified employee may not rely on a prescription dated more than 1 year prior to the date of the drug test result.

7.2. The drug testing contractor shall ensure that its collector, laboratory and medical review officer provide assistance to the Office of Miners Health, Safety and Training as needed to evaluate and prosecute any failed tests, including testifying at a Board of Appeals hearing and related services. The drug testing contractor shall ensure that its collectors, laboratories, and medical review officers comply with and honor administrative subpoenas issued by the Board of Appeals regardless of whether they are physically present in another state. Laboratory certifying scientists and medical review officers shall be permitted to testify by telephone. If not set forth contractually between the drug testing contractor and the employer, any costs and fees associated with the testimony and related services of the drug testing contractor, collector, laboratory and medical review officer shall be the responsibility of the employer.

W. Va. Code R. § 56-19-8 Disciplinary process

8.1. Any drug and alcohol test required by the employer as part of its substance abuse policy and testing program as defined in Section 3.24. shall subject a certified person to suspension of his or her mining certifications consistent with W. Va. Code 22A-1A-1 et seq. and this rule.

8.2. The Board of Appeals shall suspend all certifications possessed by a person who has entered into a treatment plan agreement as specified in Section 9.1. of this rule or who is found by a preponderance of the evidence to have failed any drug or alcohol test; refused to submit to a drug or alcohol test; possessed a substituted sample; submitted a substituted sample; possessed an adulterated sample; or submitted an adulterated sample. In addition, the Board of Appeals shall order that during the suspension period the person shall complete substance abuse and/or alcohol counseling and treatment and undergo periodic random drug and alcohol tests. The costs of any substance abuse and alcohol counseling, treatment and random drug and alcohol tests shall be the sole responsibility of the person found to have failed a drug or alcohol test.

8.3. Any person who intends to challenge the sample collection methods, the laboratory test results, the medical review officers 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 14 days prior to the hearing date. The notification shall specify, in detail, the challenge the person intends to make.

8.4. If the person submits notification in writing to the Director that he/she intends to challenge the laboratory test results or the medical review officers verification of the laboratory test result, that person shall have the split sample tested, at his/her expense, at a SAMHSA 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 or the medical review officers verification of the laboratory test result.

8.5. 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 officers 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.

8.6. No person whose certification is suspended or revoked under this rule may perform any duties under any other certification issued pursuant to Chapter 22A of the Code during the period of suspension imposed by the Board of Appeals or the Office of Miners Health, Safety and Training. Furthermore, no person whose certification is suspended or revoked under this rule may apply for or obtain any other certification issued pursuant to Chapter 22A of the Code during the period of suspension imposed by the Board of Appeals or the Office of Miners Health, Safety and Training, or after his or her certification is revoked.

8.7. The Board of Appeals shall permanently revoke all certifications issued by the Office of Miners Health, Safety and Training when the Board finds, by a preponderance of the evidence, that the person has violated Section 5.12. of this rule for the second time.

8.8. On any procedural question not regulated by the rule, the pertinent provisions of the Administrative Procedures Act found in W. Va. Code 29A-5-1 et seq. shall apply.

8.9. Any person adversely affected by a final order or decision issued by the Board of Appeals is entitled to judicial review thereof pursuant to W. Va. Code 29A-5-4.

8.10. A failed drug or alcohol test is a test in which the certified person or safety-sensitive person has tested positive for a substance listed in Section 5.4. consistent with the standards and procedures provided in 49 CFR Part 40. Where a substance listed under Section 5.4. is not specifically tested for under 49 CFR Part 40, a positive test for such a substance shall be determined by the SAMHSA certified laboratory consistent with all applicable standards and procedures provided for in 49 CFR Part 40.

W. Va. Code R. § 56-19-9 Treatment Plan Agreement

9.1. The Treatment Plan Agreement referred to in Subsection 6.1.2. of this rule shall contain, at a minimum, the following:

9.1.1. If the individual tested positive for alcohol or any substance referred to in Section 5.4. of this rule, that individual shall be required to undergo 6 months of substance abuse treatment, counseling and after-care under the supervision of a duly licensed, mental health professional and submit to random drug and alcohol screenings at a minimum of 1 per month during the 6-month treatment period. Upon completion of the 6 months of treatment and random drug and alcohol screenings, the individual may petition the Board of Appeals to re-instate his/her certifications.

9.1.2. If the individual refused a substance abuse or chemical test of breath for the presence of alcohol, that individuals mining certification(s) shall be suspended for a minimum of 18 months. The individual shall be required to successfully complete at least 6 months of substance abuse treatment, counseling and after-care under the supervision of a duly licensed mental health professional and submit to random drug and alcohol screenings at a minimum of 1 per month during the treatment period. Upon completion of the 18-month suspension and completing the treatment program with monthly and random drug and alcohol screenings, the individual may petition the Board of Appeals to re-instate his/her certifications.

9.1.3. If the individual possessed or submitted an adulterated sample or possessed or submitted a substituted sample, that individuals mining certification(s) shall be suspended for a minimum of 18 months. The individual shall be required to successfully complete at least 6 months of substance abuse treatment, counseling and after-care under the supervision of a duly licensed, mental health professional and submit to random drug and alcohol screenings at a minimum of 1 per month during the treatment period. Upon completion of the 18-month suspension and completing the treatment program with monthly and random drug and alcohol screenings, the individual may petition the Board of Appeals to re-instate his/her certifications.

9.2. The Treatment Plan Agreement shall also contain an admission by the individual that he or she has violated the substance abuse laws for the first time and a statement that a second violation of Section 5.12. of this rule shall result in the permanent revocation of all mining certifications issued to him or her.

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

9.4. The Board of Appeals shall ensure an individual has satisfied all conditions for reinstatement before reinstating any certification.

Series 20 Rules Governing the Safety of Those Employed In and Around Quarries in West Virginia

W. Va. Code R. § 56-20-1 General

1.1. Scope. - These rules govern the safety of employees in and around quarries.

1.2. Authority. - West Virginia Code § 22A-4-3.

1.3. Filing Date. -

1.4. Effective Date. -

1.5. Applicability. - These rules shall extend to all quarry operations. These rules shall not apply to any utility or railroad having facilities in the vicinity of quarry operations unless such utility or railroad is also the operator of such mining operations.

1.6. Other law applicable. - The provisions of West Virginia Code, 1931, as amended, §§ 22A-1-3, -4, -5, -7, -14, -15, -16, -17, -18, -19, -20, -22, -23, -31, -36; §§ 22A-2-70, -71, -71a, -79; § 22A-3; § 22A-4; § 22A-5-1 et seq .; Title 36 CSR Series 19; Title 37 CSR Series 1; Title 56 CSR Series 1, -2, -8; and Title 56 CSR Series 3.46 and 3.52, are applicable to quarries regulated by the West Virginia Office of Miners' Health, Safety and Training, except where the content and

purpose of a specific provision would render its applicability inappropriate to quarries.

W. Va. Code R. § 56-20-2 Effect of Rule. These rules shall have the effect of law and violations shall be deemed a violation of law and so cited with the same effect as law. All provisions of Article 1, Chapter 22A of the West Virginia Code are applicable to these rules. ### §56-20-3. Definitions

3.1. The term "agent" means any person charged with the responsibility for the operations of all or a part of a quarry or the supervision of the miners on a quarry.

3.2. The term "approved" means in strict compliance with quarry law or, in the absence of law, accepted by a recognized body or organization whose approval is generally recognized as authoritative on the subject.

3.3. The term "barricade" means to obstruct passage of vehicles or equipment and warn or obstruct passage of persons.

3.4. The term "barrier" means material objects that separate, keep apart or demarcate, in a conspicuous manner, such as cones, stakes and warning tape, used in conjunction with warning signs.

3.5. The term "bench" means:

3.5.a. A ledge, which, in open-pit mines and quarries, forms a single level of operation above which mineral or waste materials are excavated from a contiguous bank or bench face. The mineral or waste is removed in successive layers, each of which is a bench, several of which may be in operation simultaneously in different parts, and at different elevations, in an openpit mine or quarry.

3.5.b. A working level or step in a cut which is made in several layers.

3.6. The term "berm" means a pile or mound of material or equivalent capable of restraining a vehicle.

3.7. The term "blast controller" means a firing device for electronic detonator circuits which may have functions (such as programming, communication, circuit diagnostics, etc.) in addition to charging and transmission of the firing command.

3.8. The term "blast site" means the area where explosive material is handled during loading of blast holes, including fifty (50) feet in all directions from the perimeter formed by loaded holes.

3.9. The term "blasting accessories" means non-explosive devices and materials used in blasting, such as, but not limited to, cap crimpers, tamping bags, blasting machines, blasting galvanometers, and cartridge punches.

3.10. The term "blasting agent" means explosive material which meets prescribed criteria for insensitivity to initiation. For storage, the Code of Federal Regulations (C.F.R.) defines a blasting agent as any material or mixture, consisting of fuel and oxidizer intended for blasting, not otherwise defined as an explosive: Provided, That the finished product, as mixed for use or shipment, cannot be detonated by means of a No. 8 test blasting cap (detonator) when unconfined (ATF Regulation). For transportation, the C.F.R. defines Class 1, Division 1.5 (blasting agent) as a substance which has mass explosion hazard, but is so insensitive that there is very little probability of initiation or of transition from burning to detonation under normal conditions in transport and passes all United States Department of Transportation (DOT) tests defining blasting agent, including insensitivity to a No. 8 blasting cap in accordance with the C.F.R.

3.11. The term "blasting area" means the area near blasting operations in which concussion or flying material can reasonably be expected to cause injury.

3.12. The term "borehole" means a hole drilled in the material to be blasted for the purpose of containing an explosive charge, also called blast hole or drill hole.

3.13. With respect to brake systems:

3.13.a. The term "service brakes" or "service braking system" means the primary brake system used for stopping a vehicle.

3.13.b. The term "emergency braking system" means the system used for stopping a vehicle in the event of any single failure in the service brake system.

3.13.c. The term "parking brakes" means a system to hold a stopped vehicle in a stationary position.

3.14. The term "branch circuit" means any circuit, alternating current or direct current connected to and leading from the main power lines.

3.15. The term "burden" means material in surface mining.

3.16. The term "cable" means a standard conductor (single conductor cable) or a combination of conductors insulated from one another (multiple conductor cable).

3.17. The term "circuit breaker" means a device for interrupting a circuit between separable contacts under normal or abnormal conditions.

3.18. The term "competent person" means a person designated by the quarry operator or independent contractor who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous or dangerous to employees and who has authorization to take prompt corrective measures to eliminate them.

3.19. The term "Department" means the West Virginia Office of Miners' Health, Safety and Training provided for in Section 1, Article 1 of Chapter 22A of the West Virginia Code.

3.20. The term "(derived) neutral" means a neutral point or connection established by the addition of a "zigzag" or grounding transformer to a normally ungrounded power system.

3.21. The term "detonator" means blasting caps.

3.22. The term "detonating cord" means a flexible cord containing a center core of high explosives to detonate other explosives with which it comes in contact.

3.23. The term "Director" means the Director of the West Virginia Office of Miners' Health, Safety and Training.

3.24. The term "downline" means the line extending down the borehole used to carry energy to the detonating cap.

3.25. The term "effectively grounded" is an expression which means grounded through a grounding connection of sufficiently low impendence (inherent or intentionally added or both) so that ground faults which may occur cannot build up voltages in excess of limits established for apparatus, circuits or systems so grounded.

3.26. The term "electric blasting caps" means instantaneous electric blasting caps and all types of delay electric blasting caps.

3.27. The term "electrical storm" means an atmospheric disturbance characterized by intense electrical activity producing lightning strikes and strong electric and magnetic fields. Synonymous with a thunderstorm and a lightning storm.

3.28. The term "electrical work" means work consisting primarily of electrical construction, installation, testing, inspection, maintenance, and repair tasks on electrical equipment, apparatus, circuits and/or distribution circuits rated fifty (50) volts and above. Note: Examples not considered electrical work:

3.28.a. Normal operation of electrical equipment; and

3.28.b. Normal operation of controls, switches, disconnect switches or circuit breakers provided that no energized parts or conductors are exposed.

3.29. The term "electronic detonator" means a detonator that utilizes stored electrical energy as a means of powering an electronic timing delay element/module and that provides initiation energy for firing the base charge.

3.30. The term "emulsion" means an explosive material containing substantial amounts of oxidizer dissolved in water droplets, surrounded by an immiscible fuel or droplets of an immiscible fuel, surrounded by water containing substantial amounts of oxidizer.

3.31. The term "extraneous electricity" means electrical energy, other than actual firing current or the test current from a blasting galvanometer, that is present at a blast site and that could enter an electric blasting circuit. It includes stray current, static electricity, radio frequency (electromagnetic) waves and time varying electric and magnetic fields.

3.32. The term "extreme slope" is any slope greater than a 1.5 (horizontal) to 1 (vertical).

3.33. The term "explosives" means any or all of the following, but is not limited to: water gel slurries, dynamites, permissibles, pellet powder, blasting caps, electric blasting caps, nonelectrical delay blasting caps, electronic computer chip blasting caps, cast primer and boosters, detonating cord and detonating cord delay connections.

3.34. The term "firing/blasting device" means a device capable of charging and transmitting a fire command to an electronic, electric or non-electric detonator circuit.

3.35. The term "firing/lead line" means the wires connecting electric or electronic blasting circuit(s) to the electrical power source/blast controller. In cases of non-electrical initiation systems, the line that connects the blasting circuit(s) to the blasting initiating device.

3.36. The term "FOPS" means Falling Object Protection System.

3.37. The term "foreperson" means the person whom the employer or superintendent shall place in charge of the workings of the quarry and of the persons employed thereon.

3.38. The term "grounding conductor" means a conductor used to connect equipment or the grounded circuit of a wiring system to a grounding electrode or electrodes.

3.39. The term "high voltage" means voltages of more than one thousand (1,000) volts.

3.40. The term "highwall" means the unexcavated face of exposed overburden in an opencast quarry or the face or banks on the uphill side of a contour quarry.

3.41. The term "imminent danger" means the existence of any condition or practice at a quarry which could be expected to cause death or serious physical harm before such condition or practice can be abated.

3.42. The term "independent contractor" means any firm, corporation, partnership or individual that contracts to perform services or construction at a quarry, excluding quarry vendors, office equipment suppliers, service or delivery personnel.

3.43. The term "inspector" means mine inspector employed by the West Virginia Office of Miners' Health, Safety and Training as provided in Chapter 22A , Article 1 of the West Virginia Code.

3.44. The term "Institute of Makers of Explosives (IME)" means a non-profit safety-oriented trade association representing producers of commercial explosive materials in the United States and Canada and dedicated to safety in the manufacture, transportation, storage, handling and use of explosive materials.

3.45. The term "interested persons" includes the operator, members of any quarry safety committee at the quarry affected and other duly authorized representative of the quarry workers and the West Virginia Office of Miners' Health, Safety and Training.

3.46. The term "lightning arrestor" means a protective device for limiting surge voltage from electrical storms on equipment.

3.47. The term "loaded hole" means a borehole containing explosive material(s).

3.48. The term "loading" means placing explosive material in a borehole or against material to be blasted.

3.49. The term "low voltage" means up to and including six hundred sixty (660) volts.

3.50. The term "medium voltage" means voltages from six hundred sixty-one (661) to one thousand (1,000) volts.

3.51. The term "miner" means any individual working in a quarry.

3.52. The term "misfire" means a blast or specific borehole that failed to detonate as planned. Also, the explosive materials that failed to detonate as planned.

3.53. The term "neutral point" means the connection point of transformer or generator windings from which the voltage to ground is nominally zero (0), and is the point generally used for system groundings in a wye-connected AC power system.

3.54. The term "Notice of Violation" means a notice issued pursuant to the provisions of

Section 15, Article 1, Chapter 22A of the West Virginia Code.

3.55. The term "operator" means any firm, corporation, partnership, or individual operating any quarry or part thereof, or engaged in the construction of any facility associated with a quarry, and shall include any independent contractor at a quarry.

3.56. The term "overburden" means material of any nature lying on top of a deposit of a mineral which is to be mined.

3.57. The term "person" means any individual, partnership, association, corporation, firm, subsidiary of a corporation or other organization.

3.58. The term "portable trailing cable" means a flexible cable or cord used for connecting mobile, portable or stationary equipment to a source of electrical energy where permanent wiring is prohibited or is impracticable.

3.59. The term "power center or distribution center" means a combined transformer or distribution unit, complete within a metal enclosure from which one (1) or more low voltage power circuits are taken.

3.60. The term "primer" means a cartridge or container of explosives into which a detonator or detonating cord is inserted or attached, and whose purpose is to initiate the main explosive charge.

3.61. The term "production operator" means any owner, lessee, or other person who operates, controls or supervises a quarry.

3.62. The term "qualified electrician" will be as follows after the effective date of this rule:

"Qualified electrician" means one who, by possession of a recognized degree, certificate, license, or professional standing, or who by extensive knowledge, training and experience, has successfully demonstrated his/her ability to solve or resolve problems relating to electrical work and has passed a test administered by a recognized governing body, such as West Virginia Office of Miners' Health, Safety and Training, West Virginia State Fire Marshal or the Mine Safety and Health Administration (MSHA). This does not exclude other recognized governing bodies. Any participating organizations in training and testing must be approved by the Director of the West Virginia Office of Miners'

Health, Safety and Training or his authorized representative. "Qualified electricians" already acting in quarry mines prior to the effective date of this rule may continue to act as a qualified electrician:

Provided, That the operator has a written record of one (1) year employment documented as an electrician which is kept on file at the quarry and provided to West Virginia Office of Miners'

Health, Safety and Training. Electricians that are already acting as qualified electricians before the effective date of this rule and do not have one (1) year experience may be allowed to continue training under a qualified electrician until one (1) year is obtained. In no case after the effective date of this rule will a person start training as an electrician without approval from the West Virginia Office of Miners' Health, Safety and Training. A training plan shall be developed by the quarry operator and approved by the Office of Miners, Health, Safety and Training prior to new electricians being trained.

3.63. The term "quarry" means all areas being surface mined or being underground mined, as well as adjacent areas ancillary to the operations, together with preparation of processing plants, storage areas and haulage ways, roads, shops and trails.

3.64. The term "radio equipment" means an electronic transmitting device which radiates radio frequency waves. The transmitting device may be fixed (stationary) or mobile, and includes car telephones, citizens band radios, AM and FM radio transmitters, television transmitters, radar transmitters and any other wireless transmitting device.

3.65. The term "radio frequency transmissions" means the energy radiated as electromagnetic waves in the radio frequency spectrum.

3.66. The term "ROPS" means Roll Over Protection Structure.

3.67. The term "safety fuse" means a flexible cord containing an internal burning medium by which fire or flame is conveyed at a continuous and uniform rate from the point of ignition to the point of use, usually a blasting cap.

3.68. The term "shot or round" means a group of loaded boreholes fired, or intended to be fired, in a continuous sequence with the application of initiating energy.

3.69. The term "static electricity" means an electric charge at rest on a person or object. It is most often produced by the contact and separation of dissimilar insulating materials.

3.70. The term "stored energy" means the energy that has not been used or dissipated.

3.71. The term "stray current" means a flow of electricity outside an insulated conductor system.

3.72. The term "suitable" means that which fits and has the qualitites or qualifications to meet a given purpose, occasion, condition, function or circumstances.

3.73. The term "superintendent" means the person who shall have, on behalf of the operator, immediate supervision of one (1) or more quarries.

3.74. The term "supervisor" means a superintendent, foreperson, or any person specifically designated by the employer to supervise work of employees and who is acting pursuant to such specific designation and instructions.

3.75. The term "working place" means all areas in or about a quarry where persons are working.

3.76. The term "wye-connected" means a power system connection in which one (1) end of each phase windings or transformers or AC generators are connected together to form a neutral point, and a neutral conductor may or may not be connected to the neutral point, and the neutral point may or may not be grounded.

3.77. The term "zigzag transformer (grounding transformer)" means a transformer intended primarily to provide a neutral point for grounding purposes.

W. Va. Code R. § 56-20-4 Quarry Foreperson and Competent Person; Daily Inspection of Working Places;

Records. #### 4.1. Pre-shift examination.

4.1.a. Within three (3) hours prior to the beginning of any shift the quarry foreperson or competent person shall visit and carefully examine all active working places of the quarry.

4.1.b. Upon completion of the examination, the foreperson or competent person shall record the results in a book approved by the Director of the West Virginia Office of Miners' Health, Safety and Training at the designated station at the quarry before persons enter the working area of the quarry. Before the beginning of any shift upon which they shall perform supervisory duties, the quarry foreperson or competent person shall review carefully and countersign all books and records of the prior shift reflecting the conditions under their supervision, exclusive of equipment logs, which the operator is required to keep.

4.1.c. The operator shall have weekly safety meetings with all employees which shall provide training in the working practices and conditions at the quarry and rules applicable thereto.

A record of the topic of the weekly safety meetings shall be kept and signed by all people in attendance. This record shall be kept for one (1) year and made available to a representative of the Director upon request.

4.2. On-Shift Examination. The quarry foreperson or competent person shall examine all working places at the quarry under supervision for hazards at least once every four (4) hours during each working shift, or more often if necessary for safety. Upon completion of the examination(s), the foreperson or competent person shall record the results and time(s) in a book approved by the Director. The quarry foreperson or competent person shall also, each day, read carefully and countersign with ink or indelible pencil all reports entered in the record book by the quarry foreperson or competent person on the prior shift.

4.3. Records of Examinations. All violations or hazardous conditions and the action taken to correct such violations or conditions including the pre-shift and on-shift examinations shall be recorded in ink or indelible pencil in a book approved by the Director of the West Virginia Office of Miners' Health, Safety and Training, and kept at the quarry office for a period of one (1) year.

4.4. Dangerous conditions. Should the quarry foreperson or competent person find a place to be in a dangerous condition, he/she shall not leave the place until it is made safe, or shall remove the persons working therein until the place is made safe by some competent person designated for that purpose. He/she shall also record any dangerous conditions and practices found during his/her examination in a book provided for that purpose. The quarry foreperson shall give prompt attention to the removal of all dangers reported to him/her by his/her assistants or any other person working in the quarry.

4.5. Close deep operations. When a quarry operation is known to be close to an active underground quarry or mine, the quarry foreperson or superintendent shall give the official representative of the underground quarry or mine at least twelve (12) hours notice in advance of any contemplated blasting that may endanger the safety of persons employed in the underground quarry or mine.

4.6. Instructions. The quarry foreperson shall see that every person employed to work at such quarry shall, before beginning work therein, be instructed in the particular dangers incident to the work in such quarry. A record of such instructions shall be kept and made available upon request by an authorized representative of the Director.

4.7. Upon the operator's written request and the Director's written approval, a pre-shift inspection of designated areas of operations may be excluded or modified.

W. Va. Code R. § 56-20-5 Duty of Quarry Foreperson to Notify Operator When Unable to Comply with Law;

Duty of Operator. The quarry foreperson shall notify, in writing, the operator or superintendent of the quarry and the Director of the West Virginia Office of Miners' Health, Safety and Training of his/her inability to comply with any of the requirements of this law, and it shall then become the duty of such operator or superintendent promptly to attend to the matter complained of by the quarry foreperson so as to enable him/her to comply with the provisions hereof. Every operator of a quarry shall furnish all supplies necessary for the quarry foreperson to comply with the requirements of this law after being requested to do so in writing by the quarry foreperson. ##### §56-20-6. Ground Control.

6.1. Loose material removal. Loose hazardous material shall be stripped for a safe distance, except where vegetation is required to support the slope from the top of pit or high walls, and the loose unconsolidated material shall be sloped to the angle of repose, or barriers, baffle boards, screen, or other approved devices that afford equivalent protection.

6.2. Benches. When a bench is required to insure safe operations, the width and height of the bench shall be governed by the type of equipment to be used and the operations to be performed, type of material and height of wall. ###### 6.3. Highwall and burden bank work areas.

6.3.a. The highwall shall be sloped or benched to prevent or minimize the danger of a slide. All overhanging ledges and loose material shall be scaled from the highwall. When scaling of a highwall is necessary to correct conditions, a safe means shall be provided to perform such work.

6.3.b. When the highwall is cracked and shows evidence of movement, or of weakening, the area shall be made safe or abandoned and dangered off. Any highwall failure that affects the safe working conditions of the quarry shall be reported to the West Virginia Office of Miners' Health, Safety and Training within twenty-four (24) hours of the time of discovery of the failure.

6.3.c. Trees endangering workmen along highwalls shall be removed. Trees that cannot be safely removed shall be barricaded and no work shall be done in the area. Such work shall be completed during daylight hours.

6.3.d. Burden banks shall be placed an adequate distance from the pit to prevent any material from rolling back and endangering the works. Burden shall be kept free of bodies of water which would be hazardous in active work areas. Burden material shall be sloped to the angle of repose or other measures taken to prevent the material from slothing, sliding, or rolling into the pit.

6.3.e. Persons, other than those designated to correct unsafe conditions, shall not work near or under highwalls or banks.

6.3.f. During bench loading, adequate precautions shall be taken to prevent equipment from going over a highwall or bench.

6.4. Scaling and Support. Ground conditions that create a hazard to persons shall be taken down or supported before other work or travel is permitted in the affected area. Until corrective work is completed, the area shall be posted with a warning against entry and, when left unattended, a barrier shall be installed to impede unauthorized entry.

6.5. Scaling tools. Where manual scaling is performed, a scaling bar shall be provided. This bar shall be of a length and design that will allow the removal of loose material without exposing the person performing the work to injury. ###### 6.6. Rock fixtures.

6.6.a. When rock bolts and accessories addressed in the American Society for Testing and Materials (ASTM) F432-83, "Standard Specification for Roof and Rock Bolts and Accessories," are used for ground support, the mine operator shall:

6.6.a.1. Obtain a manufacturer's certification that the material was manufactured and tested in accordance with the specifications of ASTM F432-83; and

6.6.a.2. Make this certification available to an authorized representative of the Director.

6.6.b. Fixtures and accessories not addressed in ASTM F432-83 may be used for ground support provided they:

6.6.b.1. Have been successful in supporting the ground in an area with similar strata, opening dimensions and ground stresses in any mine; or

6.6.b.2. Have been tested and shown to be effective in supporting ground in an area of the affected mine which has similar strata, opening dimensions, and ground stresses as the area where the fixtures are expected to be used. During the test process, access to the test area shall be limited to persons necessary to conduct the test.

6.6.c. Bearing plates shall be used with fixtures when necessary for effective ground support.

6.6.d. The diameter of finishing bits shall be within a tolerance of plus or minus 0.030 inch of the manufacturer's recommended hole diameter for the anchor used. When separate finishing bits are used, they shall be distinguishable from other bits.

6.6.e. Damaged or deteriorated cartridges of grouting material shall not be used.

6.6.f. When rock bolts tensioned by torqueing are used as a means of ground support, selected tension level shall be:

6.6.f.1. At least fifty percent (50%) of either the yield point of the bolt or anchorage capacity of the rock, whichever is less; and

6.6.f.2. No greater than the yield point of the bolt or anchorage capacity of the rock.

6.6.f.3. The torque of the first bolt, every tenth bolt, and the last bolt installed in each work area during the shift shall be accurately determined immediately after installation. If the torque of any fixture tested does not fall within the installation torque range, corrective action shall be taken.

6.6.g. When grouted fixtures can be tested by applying torque, the first fixture installed in each work place shall be tested to withstand one hundred fifty (150) foot-pounds of torque. Should it rotate in the hole, a second fixture shall be tested in the same manner. If the second fixture also turns, corrective action shall be taken.

6.6.h. When other tensioned and non-tensioned fixtures are used, test methods shall be established and used to verify their effectiveness.

6.6.i. The mine operator shall certify that tests were conducted and make the certification available to an authorized representative of the Director.

6.7. Ground support use. Ground support shall be used where ground conditions, or mining experience in similar ground conditions in the mine, indicate that it is necessary. When ground support is necessary, the support system shall be designed, installed, and maintained to control the ground in places where persons work or travel in performing their assigned tasks. Damaged, loosened, or dislodged timber used for ground support which creates a hazard to persons shall be repaired or replaced prior to any work or travel in the affected area.

6.8. Examinations. Should a slide occur, a foreperson shall examine the area of the slope for danger of additional slides. No person shall work in the area until the examination is complete and the area declared safe. ###### 6.9. Repairs in excavation areas.

6.9.a. Special safety precautions shall be taken when persons are required to perform repair work between immobilized equipment and within a safe distance from the highwall or burden bank where such equipment may hinder escape from falls or slides. A competent person shall be designated to observe the highwall or burden bank. When equipment is mobile, it shall be moved to a safe location away from dangerous banks or highwalls.

6.9.b. Persons shall not perform maintenance work between machinery, equipment, and the face or ribs unless the area has been tested and, when necessary, secured. When equipment is mobile, it shall be moved to a safe location.

6.10. Tree removal. When miners are in the area, suitable warning shall be given before equipment shoves over or uproots trees, and workers shall be removed from the immediate vicinity.

6.11. Night work. When quarrying is performed at night, the pits, highwalls, and dump areas in the vicinity of the work shall be adequately illuminated.

6.12. Dump areas.

6.12.a. Safety berms shall be provided at the edge of all fill areas to prevent over-travel or overturning. The berm will consist of material end dumped and/or pushed by the fill dozer to create an adequate berm. The minimum height of the berm will be axle height of the largest rubber tire equipment working on the fill. Safety berms shall not be damaged by, or used as a stop block, by haulage equipment.

6.12.b. Should the outer slope of the fill become steeper than the safe angle of repose, shortdumping procedures shall be initiated. Equipment operators and truck drivers operating on the fill will be informed of the steep slope condition and will be required to dump a minimum of one (1) truck length from the edge of the fill. Short dumping shall continue until a safe angle of repose is established.

6.12.c. In the event tension cracks appear near the outer edge of the fill, short dumping will be initiated. Equipment operators and truck drivers working on the fill will be informed of the tension cracks and will be required to dump a minimum of one (1) truck length from the tension cracks.

6.12.d. In the event of tension cracks developing in a fill, the following procedures shall be initiated:

6.12.d.1. The dozer shall begin a cut a safe distance back from tension crack. The cut will extend forward to the edge of the fill.

6.12.d.2. The dozer operator will take special precautions to prevent over-travel at the edge of the fill. This procedure will be utilized until the tension crack is removed.

6.12.d.3. Material will be dumped at the back edge of the cut and pushed in place by the dozer to reestablish the safe working elevation. Should additional tension cracks occur, these procedures will be repeated.

6.12.e. The surface of the fill shall be graded/sloped to prevent water from impounding near the edge of the fill.

6.13. Ground Control Plan. A copy of the current adopted Ground Control Plan shall be posted at the mine and a copy given to the State Mine Inspector. ##### §56-20-7. Drilling.

7.1. Inspection. All drilling equipment shall be provided with restraining devices installed properly to prohibit the free fall of drill steels which may break or become unthreaded at the point of the adaptor.

7.2. Horizontal drill.

7.2.a. When horizontal drills are used, the operator shall not leave the controls while the drill stems are in operation.

7.2.b. All persons shall be required to keep in the clear of auger and drill stems while in motion. No person shall be permitted to pass under or step over a moving drill stem or auger.

7.2.c. Prior to horizontal holes being drilled in overburden, a careful inspection of the highwall face shall be made. All loose hazardous material shall be removed before other work is performed.

7.3. Vertical drilling.

7.3.a. When vertical drilling operations are being performed, the drill machine shall be continuously attended.

7.3.b. When churn drills or vertical rotary drills are used, the drill machine operator shall not work under suspended tools. When collaring holes, inspecting, or during any operation where tools are removed from the hole, the tools shall be lowered to the ground or platform.

7.3.c. No person shall be permitted around auger and drill stems that are in motion.

7.3.d. Starter hole drill steels shall be utilized when collaring holes with a hand-held drill.

7.3.e. No person shall be permitted on the drill mast while the drill bit or carriage is in motion. Tools and/or other material shall not be left on the drill mast.

7.3.f. Threads on all drill steels and related components shall be maintained in a safe working condition.

7.4. Drilling position.

7.4.a. Drill machine operators shall not drill from positions that hinder their access to controls levers, or from insecure footing, or staging, or from atop equipment not designated for this purpose.

7.4.b. Miners shall not hand grasp the drill steel while collaring holes or place their hands on the chuck or centralizer while drilling.

7.4.c. Miners operating or working near jackhammers or jackleg drills shall position themselves so they will not be struck or lose their balance if the drill steel breaks.

7.4.d. Drills shall not be positioned near the edge of the bench where safe egress from the operator's cab cannot be maintained.

7.4.e. When drilling near a highwall, the drill shall be positioned so the operator's cab is on the side of the drill away from the highwall. If this cannot be accomplished due to extenuating circumstances, a spotter shall be provided. ###### 7.5. Movement of drills.

7.5.a. Vertical drill holes and blast crevices that remain open after blasting and constitute a hazard shall be protected to prevent persons from falling into them.

7.5.b. While moving a drill machine from one area to another, drill steel tools and other equipment shall be secured and the mast placed in a safe position.

7.5.c. The location of the drill machine helper shall be known to the drill machine operator at all times while such drill is being moved.

7.5.d. Hand-held air drills shall be turned off and all air bled from air hoses before such drill is moved from one working area to another and at the end of each shift. ##### §56-20-8. Explosives and Blasting.

8.1. Transportation vehicles. Motor vehicles used to haul explosives shall comply with the following provisions:

8.1.a. Possess two (2) portable fire extinguishers, either a multi-purpose dry chemical type, containing a nominal weight of five (5) pounds of dry powder and enough expellant to apply the powder, or a foam-producing type containing at least two and one-half (2-1/2) gallons of foam-producing liquid and enough expellant to supply foam. Only fire extinguishers approved by the Underwriters Laboratories (UL), carrying appropriate labels as to type and purpose, shall be used.

8.1.b. All electric wiring shall be adequately protected and securely fastened. Damaged insulated wiring shall be repaired or replaced immediately.

8.1.c. Chassis, engine, pan and bottom of vehicle body shall be reasonably clean and free of oil and grease. Cargo bins shall be cleaned as often as necessary to prevent the accumulation of ammonium nitrate or emulsion on or atop the bins.

8.1.d. Fuel tanks and lines shall have no leaks.

8.1.e. Safety devices including, but not limited to lights, horns, brakes, windshield wipers, and steering apparatus shall be functioning properly.

8.1.f. When explosives are not transported in their original closed containers or in special closed cases constructed of nonconductive material, the vehicle cargo space shall be lined with wood or approved non-sparking material.

8.1.g. The vehicle shall be plainly marked to indicate the nature of the cargo.

8.1.h. The vehicle shall be equipped with suitable sides and tailgates. The explosives shall not be piled higher than the side or end.

8.1.i. Handrails or fall protection devices shall be provided when persons are required to work atop the cargo bin of the bulk explosives truck.

8.1.j. Proper maintenance and examinations shall be performed to prevent overheating of the emulsion pump and a record of the examinations shall be kept at the quarry for one (1) year and made available to a representative of the Director upon request.

8.2. Transportation of explosives. - Precautions.

8.2.a. Explosives and/or detonators shall not be transported in the same vehicle unless separated by a substantially fastened four-inch (4") hardwood partition or equivalent approved material.

Explosives and/or detonators shall not be transported in the cab of the vehicle.

8.2.b. Explosives and/or detonators shall be transported promptly without undue delays.

8.2.c. Only those persons necessary shall be permitted to ride in vehicles containing explosives and/or detonators.

8.2.d. When vehicles containing explosives or detonators are parked on a grade, the parking brakes shall be set and the vehicles blocked securely against rolling.

8.2.e. Vehicles containing explosives and/or detonators shall not be taken to a repair garage or shop.

8.2.f. Vehicles containing explosives and/or detonators shall not be left unattended unless the vehicle and all compartments containing explosives and/or detonators are properly locked to prevent unauthorized access.

8.2.g. Safe roads shall be maintained for access and exit to all blast areas where boreholes are loaded or being prepared to be loaded. ##### 8.3. General requirements. - Explosives.

8.3.a. The West Virginia Department of Environmental Protection shall be responsible for the examination and certification of persons engaging in or directly responsible for blasting or use of explosives in quarrying operations.

8.3.b. After the effective date of the certified blasters rules, all handling and transporting of explosives shall be under the direct supervision of a certified blaster (only applicable to a surface quarry).

8.3.c. The transportation, storage, handling and use of explosive materials and blasting accessories shall be in accordance with the current Institute of Makers of Explosives Warnings and Instructions. A copy of the current Institute of Makers of Explosives Warnings and Instructions shall be available to miners upon request. All persons involved in the blasting procedure shall be properly trained and familiar with these Warnings and Instructions and a record kept of this training for one (1) year and made available to a representative of the Director upon request.

8.3.d. Open fires and flames are prohibited within fifty (50) feet of the area where explosives are being stored, handled or used.

8.3.e. Explosives, blasting caps and electric blasting caps shall not be carried in pockets of clothing or left lying around unguarded.

8.3.f. During the approach and progress of an electrical storm:

8.3.f.1. Surface blasting operations shall be suspended and persons withdrawn from the blast area or to a safe location.

8.3.f.1.A. When drills are located on a bench with loaded holes, or holes being loaded, masts shall be lowered upon the approach of an electrical storm when practical.

8.3.f.2. Underground electrical blasting operations that are capable of being initiated by lightning shall be suspended and all persons withdrawn from the blast area or to a safe location.

8.3.g. All runways, chutes and conveyors used for unloading of explosives shall have no exposed sparking metal parts.

8.3.h. Explosives and detonators shall be kept at a safe location.

8.3.i. Driving vehicles or dragging boxes over firing lines, detonator wires, explosives, blasting agents, and detonators shall be prohibited. Traveling over loaded holes shall be prohibited.

8.3.j. Previously frozen explosives of nitroglycerin base shall not be used. Deteriorated or damaged explosives and detonators shall be destroyed by an authorized representative of the manufacturing company.

8.3.k. Explosives and/or detonators shall not be transported in a bucket or a dragline or like equipment.

8.3.1. Defective or damaged blasting equipment or accessories shall not be used.

8.3.m. No shots shall be fired in any place where gas is detected with an air quality testing device.

8.4. Shooting preparation.

8.4.a. Primers shall not be made up until ready to be inserted in the hole.

8.4.b. Two-way radio equipment shall be turned off prior to the handling and use of electric detonators for the proposed shot. This rule does not apply to radios operating beyond the distances shown on Table 1 found at the end of this rule. Adequate warning signs shall be located on all travel roads at a distance of not less than one hundred (100) feet from the minimum transmitting distance. When using electronic detonators, the detonators shall be protected from electromagnetic, radio frequency transmissions, or other electrical interference sources in accordance with the manufacturer's recommendations.

8.4.c. Only equipment necessary for preparing and loading holes shall be permitted to work within fifty (50) feet of loaded holes or holes being loaded. This distance of fifty (50) feet shall include the entire column of the loaded hole when equipment is excavating on the same bench level as loaded holes.

In cases of emergency, in which the equipment indicated above has malfunctioned and cannot be removed from the area, the blaster and foreperson shall direct the use of maintenance equipment if required to safely repair and/or remove the disabled equipment from the area. Adequate precautions shall be taken to prevent extraneous electricity from entering an electrical blasting circuit. Electrically-powered equipment and trailing cables shall be prohibited from being within one hundred (100) feet of loaded holes or holes being loaded.

When a potential source of extraneous electricity is present in the general area and electrical detonators are to be used, a stray current test shall be made on the bench prior to commencing loading holes; if current is detected, the source of the extraneous electricity shall be neutralized before loading may begin.

8.4.d. Holes shall not be drilled if there is danger of intersecting a loaded or a misfired hole.

When drill(s) are being operated on a bench being loaded, a minimum of one (1) hole around the perimeter of the drill shall remain unprimed and unloaded.

8.4.e. Only wooden or other approved non-sparking implements shall be used to punch holes in an explosive cartridge.

8.4.f. Tamping poles shall be blunt and squared at the end and made of wood or other, nonsparking, approved material.

8.4.g. Tamping shall not be performed directly on a capped primer.

8.4.h. When a quarry has cut into a known active underground quarry or mine, the district mine inspector and an official representative of the quarry or mine shall be notified before any blasting is performed. The mine inspector, quarry and/or mine representative shall determine and agree during what hours blasting shall be performed.

8.4.i. Misfires shall be handled only by or under the direction of a certified blaster and foreperson.

8.4.j. In order for the blaster to maintain control of the shot, up to the point of detonation, no type of safety fuse detonators shall be used.

8.4.k. No detonators, detonating cord, igniter cord, or any explosives shall be used if they have been water soaked.

8.4.1. Electric blasting caps shall be fired with an approved blasting device.

8.4.m. Explosives shall be kept separated at least fifteen (15) feet from detonators until loading is started, unless an approved container is utilized.

8.4.n. Ample warning shall be given by an audible warning device before blasts are fired.

All persons shall be removed from the blasting area.

8.4.0. Detonating caps taken into a pit prior to being used shall be kept in an approved suitable container.

8.4.p. At least a five (5) foot air gap shall be provided between the blasting circuit and the power circuit when the hole or series of holes are being connected.

8.4.q. When loading beneath highwalls, the highwall shall be carefully inspected by the blaster in charge before beginning the loading process. Persons shall not load boreholes in areas where the highwall is unstable.

8.4.r. Boreholes shall not be located near the outer edge of highwalls/benches where such location could create a danger of falling over the highwall by persons loading boreholes. Boreholes located dangerously close to the outer edge of the highwall/bench shall not be loaded. Persons loading boreholes shall not work within six (6) feet of the outer edge of the highwall/bench unless adequate fall protection is provided.

8.5. Firing/lead lines.

8.5.a. Firing/lead lines shall be well insulated and as long as may be necessary to permit persons authorized to fire shots to get in a safe place out of the line of fire.

8.5.b. Firing/lead lines shall be kept away from power wires and all other sources of electric current.

8.5.c. The firing/lead lines shall be of sufficient length to assure the safe location of persons participating in the blasting.

8.5.d. When using electric caps, the firing/lead line shall be kept shunted until connected to the approved blasting device.

8.5.e. Except when being tested with a blasting galvanometer, or other approved device, electric detonators shall be kept shunted until they are connected to the firing/lead line or wired into a blasting round.

8.5.f. A wired round shall be kept shunted until connected to the firing/lead line when using electric caps.

8.5.g. The blast area shall be cleared of personnel, vehicles, and equipment prior to connecting the firing/lead line to the firing device or blast controller or, in the case of remote-controlled detonation systems, prior to arming the firing device.

8.5.h. Remote control detonation systems shall be used in accordance with manufacturer's instructions. A copy of these instructions shall be available to miners upon request. All persons involved with the blasting procedure shall be properly trained and familiar with the manufacturer's instructions. A record of such training shall be kept for one (1) year and made available to a representative of the Director upon request.

8.5.i. When using electric or electronic detonators, adequate precautions shall be provided to prevent accidental electrical shock to the person(s) detonating the blast. ##### 8.6. Blasting.

8.6.a. Any area in which holes are being loaded shall be guarded by danger signs located fifty (50) feet beyond the perimeter of loaded holes or by a person physically present to prevent unauthorized entry.

8.6.b. The blaster shall make sure that all persons are in a safe place before firing a shot.

Additional personnel and radio communication, if needed to assure security of the blast area, shall be utilized.

Radio silence shall be observed by all persons except those involved in the blasting procedure.

8.6.b.1. For surface areas, an approved audible warning device shall give ample warning before blasts are fired. The pre-blast warning signal shall be sounded three (3) minutes prior to the detonation of the blast and this signal shall consist of three short warning signals with five (5) second intervals between these signals. The post-blast signal that the blast area is clear shall consist of a twenty (20) second in duration signal. The warning shall be audible for a distance of at least one-half (1/2) mile.

8.6.b.2. For underground areas, ample warning shall be given to allow all persons to be evacuated.

8.6.c. The blaster shall assure that all components are properly connected to assure proper detonation of the blast.

8.6.d. All holes or series of holes containing detonators shall be fired immediately upon completion of loading. The blaster shall notify the supervisor in charge of workers in the area before commencing to connect loaded holes. Once beginning to connect loaded holes, this shall proceed without delay until all holes are connected. All persons within a three hundred (300) foot radius of the blast area shall be removed by the time all holes are connected and work shall not commerce again until the holes have been fired. However, after connecting the loaded holes, if for any reason the holes cannot be fired immediately, work shall not commence again until the holes have been fired or all holes disconnected.

8.6.e. For Surface only. The firing of holes shall be conducted during daylight hours.

8.6.f. Every reasonable effort shall be made to fire loaded holes on the shift they are loaded.

However, if loaded holes must be left overnight, the following safeguards shall be utilized:

8.6.f.1. As a practice, connected holes shall not be left overnight unless emergency conditions exist (example: electrical storms) that do not allow the shot to be detonated. No persons shall be permitted within three hundred (300) feet of the blast area where connected loaded holes could not be detonated as planned.

8.6.f.2. The blaster, in conjunction with the foreperson, shall properly designate the area affected by unfired holes (connected/unconnected). Barriers (cones and flagging) and signs, or a person physically present, shall prevent personnel and/or equipment from entering the affected area.

8.6.f.3. The location of the unfired loaded holes shall be documented in the preshift/on-shift examination book.

8.6.f.4. All personnel on affected shifts shall know the route in which to travel to a safe location in the event unforeseen circumstances (electrical storms, unstable highwalls, etc.) arise while working in the area of unfired loaded holes.

8.6.g. When loading boreholes containing water, or if loaded holes are to be left for an extended period of time, sufficient slack in downlines shall be provided to prevent stretching and possible damage to downlines due to settling of material in the borehole.

8.6.h. When drilling and blasting in areas where underlying coal seam(s) are burning, or suspected of burning, a plan outlining safeguards to be provided for the protection of workers shall be submitted for approval to the West Virginia Office of Miners' Health, Safety and Training. Such drilling and blasting shall not commence until approval is granted. ###### 8.7. Post firing.

8.7.a. The firing lines/lead lines shall be disconnected from the electrical power source immediately after each blast when electric or electronic detonators are used.

8.7.b. No persons shall return to the area where blasting has been performed until the dust, smoke and fumes have cleared.

8.7.c. After a blast:

8.7.c.1. Surface-the blaster shall examine the area and pronounce it safe before others enter the blast area.

8.7.c.2. Underground-a competent person shall examine the area and pronounce it safe before others enter the blast area. ### 8.8. Misfires.

8.8.a. When a misfire is detected, no persons shall return to the misfired holes for at least fifteen (15) minutes. Misfires shall be handled only by:

8.8.a.1. Surface-a certified blaster in the presence of the foreperson.

8.8.a.2. Underground-the foreperson and/or competent person.

8.8.b. When a shot has misfired, extra precaution shall be taken in the handling of the misfire. If a misfire is detected:

8.8.b.1. Surface-the blaster and the foreperson in charge shall determine the necessary action to be taken to safely correct the situation.

8.8.b.2. Underground-a competent person shall determine the necessary action to be taken to safely correct the situation.

8.8.c. When a misfire/unfired explosive exists, or is suspected to exist, all persons working in the area shall be notified and given instructions on proper handling of possible undetonated explosives.

The location of these holes shall be recorded in the pre-shift/on-shift book.

8.8.d. Immediately after firing a misfired shot, the firing/lead lines shall be disconnected from the firing device or blast controller when electric or electronic detonators are used. When using electric detonators, the ends of the firing/lead lines shall also be shunted.

8.8.e. If explosives or blasting agents are suspected of burning in a hole, all persons in the blasting area shall move to a safe location and no person shall return to the hole for at least one (1) hour. ### 8.9. Storage of explosives.

8.9.a. After loading boreholes, all unused explosives shall be returned to the proper explosive storage magazine.

8.9.b. Separate surface magazines shall be provided for storage of explosives, detonators, and blasting heater elements. Surface magazines shall be constructed of incombustible material exposed inside the magazine. Surface magazines shall be provided with doors constructed of at least one-fourth inch (1/4") steel plate lined with a two inch (2") thickness of wood, or the equivalent, provided with adequate and effectively screened ventilation openings near the floor and ceiling, kept locked securely when unattended, posted with suitable danger signs so located that a bullet passing through the face of the sign will not strike the magazine. The location of the magazine shall not be less than two hundred (200) feet from any active work area, occupied buildings, or public roads unless barricaded. If magazines are illuminated electrically, the lamps shall be of vapor-proof type, properly installed and wired. Smoking, open flames, open lights or spark-producing devices shall be prohibited in or within fifty (50) feet of a detonator or explosive magazine or facility.

8.9.c. Explosives magazines shall be located at least one hundred (100) feet away from power lines and fuel storage areas.

8.9.d. Cases or boxes containing explosives shall not be stored on their ends or sides in magazines nor stacked more than six (6) feet high.

8.9.e. An area of twenty-five (25) feet around magazines shall be kept clear of dry leaves, grass, undergrowth, trash and debris.

8.9.f. Detonator and explosives storage magazines shall be separated by at least twenty-five (25) feet.

8.9.g. Ground rods shall be properly installed and secured on explosive storage magazines so as to provide sufficient electrical ground.

8.9.h. Semitrailer van(s) used for highway or on-site transportation of blasting agents are satisfactory for storing these materials, provided they are located according to the current American Table of Distance with respect to inhabited buildings, passenger railroads and public highways. Trailers will be provided with substantial means for locking, and the trailer doors shall be kept locked except during time of placement and removal of blasting agents.

8.10. Storage of underground explosives in main facilities.

8.10.a. Main facilities used to store explosive material underground shall be located:

8.10.a.1. In stable or supported ground;

8.10.a.2. So that a fire or explosion in the storage facilities will not prevent escape from the mine or cause detonation of the contents of another storage facility;

8.10.a.3. Out of the line of blasts, and protected from vehicular traffic, except that accessing the facility;

8.10.a.4. At least two hundred (200) feet from work places or shafts;

8.10.a.5. At least fifty (50) feet from electric substations;

8.10.a.6. A safe distance from trolley wires; and

8.10.a.7. At least twenty-five (25) feet from detonator storage facilities.

8.10.b. Main facilities used to store explosive material underground shall be:

8.10.b.1. Posted with warning signs that indicate the contents and are visible from any approach;

8.10.b.2. Used exclusively for the storage of explosive material and necessary equipment associated with explosive material storage and delivery;

8.10.b.2.A. Portions of the facility used for the storage of explosives shall only contain non-sparking material or equipment.

8.10.b.2.B. The blasting agent portion of the facility may be used for the storage of other necessary equipment.

8.10.b.3. Kept clean, suitably dry, and orderly;

8.10.b.4. Provided with unobstructed ventilation openings;

8.10.b.5. Kept securely locked unless all access to the mine is either locked or attended; and

8.10.b.6. Unlighted or lighted only with devices that do not create a fire or explosion hazard and which are specifically designed for use in magazines.

8.10.b.7. Electrical switches and outlets shall be located outside the facility.

8.11. Auxiliary facilities.

8.11.a. Auxiliary facilities used to store explosive material near work places shall be wooden, box-type containers equipped with covers or doors, or facilities constructed or mined-out to provide equivalent impact resistance and confinement.

8.11.b. The auxiliary facilities shall be:

8.11.b.1. Constructed of non-sparking material on the inside when used for the storage of explosives;

8.11.b.2. Kept clean, suitably dry, and orderly;

8.11.b.3. Kept in repair;

8.11.b.4. Located out of the line of blasts so they will not be subjected to damaging shock or flyrock;

8.11.b.5. Identified with warning signs or coded to indicate the contents with markings visible from any approach;

8.11.b.6. Located at least fifteen (15) feet from all haulage ways and electrical equipment, or placed entirely within a mined-out recess in the rib used exclusively for explosive material;

8.11.b.7. Filled with no more than a one (1) week supply of explosive material;

8.11.b.8. Separated by at least twenty-five (25) feet from other facilities used to store detonators; and 8.11.b.9 Kept securely locked unless all access to the mine is either locked or attended.

8.12. Bulk delivery vehicles.

8.12.a. No welding or cutting shall be performed on a bulk delivery vehicle until the vehicle has been washed down and all explosive material has been removed. Before welding or cutting on a hollow shaft, the shaft shall be thoroughly cleaned inside and out and vented with a minimum one-half (1/2) inch diameter opening to allow for sufficient ventilation. # §56-20-9. Underground Workings. ## 9.1. Mine workings.

9.1.a. The operator shall refrain from quarrying within five hundred (500) feet of any active or abandoned underground quarry or mine in order to prevent breakthroughs and to protect health or safety of miners: Provided, That the Director shall permit an operator to quarry near, through or partially through an abandoned underground mine/quarry or closer to an active underground mine/quarry if:

9.1.a.1. The nature, timing and sequencing of the approximate coincidence of specific quarry activities with specific underground mine/quarry activities are coordinated jointly by the operators involved and approved by the Director of the West Virginia Office of Miners' Health, Safety and Training, and

9.1.a.2. Such operations will result in improved resource recovery, abatement of water pollution or elimination of hazards to the health and safety of the public: Provided, That any breakthrough of an underground quarry or mine which does occur shall be sealed.

9.1.b. The official representative of any known underground mine/quarry shall be notified immediately when a quarry operation may in any way interfere with the safe operation of the active underground mine/quarry.

9.1.c. Special precautions shall be taken to protect the employees where excavating is being performed in the vicinity of a known abandoned underground mine/quarry which may contain a dangerous accumulation of water and/or gas.

9.1.d. All cut-throughs into underground mine/quarry workings shall be closed immediately.

9.1.e. Access to unattended mine openings shall be restricted by gates or doors, or the openings shall be fenced and posted.

9.1.f. Upon abandonment of a mine, the owner or operator shall effectively close or fence off all surface openings down which persons could fall or through which persons could fall or through which persons could enter. Upon or near all such safeguards, trespass warnings and appropriate danger notices shall be posted. ## 9.2. Ventilation.

9.2.a. Ventilation plan. A plan of the mine ventilation system shall be set out by the operator in written form. Revisions of the system shall be noted and updated at least annually. The ventilation plan or revisions thereto shall be submitted to the Director of the West Virginia Office Miners"

Health, Safety and Training or his authorized representative for review and comments upon his written request. The plan shall, where applicable, contain the following:

9.2.a.1. The mine name;

9.2.a.2. The current mine map or schematic or series of mine maps or schematics of an appropriate scale, not greater than five hundred (500) feet to the inch, showing:

9.2.a.2.A. Direction and quantity of principal air flows;

9.2.a.2.B. Locations of seals used to isolate abandoned workings;

9.2.a.2.C. Locations of areas withdrawn from the ventilation system;

9.2.a.2.D. Locations of all main, booster and auxiliary fans;

9.2.a.2.E. Locations of air regulators and stoppings and ventilation doors;

9.2.a.2.F. Locations of overcasts, undercasts and other airway crossover devices;

9.2.a.2.G. Locations of known oil or gas wells;

9.2.a.2.H. Locations ofknown underground mine openings adjacent to the mine;

9.2.a.2.I. Locations of permanent underground shops, diesel fuel storage depots, oil fuel storage depots, hoist rooms, compressors, battery charging stations, electrical distribution networks and explosive storage facilities. Permanent facilities are those intended to exist for one (1) year or more;

9.2.a.2.J. Significant changes in the ventilation system projected for one (1) year;

9.2.a.2.K. Mine fan data for all active main and booster fans including manufacturer's name, type, size, fan speed, blade setting, approximate pressure at present operating point, and motor brake horsepower rating;

9.2.a.2.L. Diagrams, descriptions or sketches showing how ventilation is accomplished in each typical type of working place including the approximate quantity of air provided, and typical size and type of auxiliary fans used;

9.2.a.2.M. The number and type of internal combustion engine units used underground, including make and model of unit, type of engine, make and model of engine, brake horsepower rating of engine, and approval number;

9.2.a.2.N. Unventilated areas. Unventilated areas shall be sealed or barricaded and posted against entry;

9.2.a.2.O. Auxiliary fan systems. When auxiliary fan systems are used, such systems shall minimize recirculation and be maintained to provide ventilation air that effectively sweeps the working places;

9.2.a.2.P. Construction and maintenance of ventilation doors;

9.2.a.2.Q. Ventilation doors shall be:

9.2.a.2.Q.1. Substantially constructed;

9.2.a.2.Q.2. Covered with fire-retardant material, if constructed of wood;

9.2.a.2.Q.3. Maintained in good condition;

9.2.a.2.Q.4. Self-closing, if manually operated; and

9.2.a.2.Q.5. Equipped with audible or visual warning devices, if mechanically operated.

9.2.a.2.R. Opening and closing of ventilation doors. When ventilation control doors are opened as a part of the normal mining cycle, they shall be closed as soon as possible to reestablish normal ventilation to working places.

9.2.a.2.S. Seals. Seals shall be provided with a means for checking the quality of air behind the seal and a means to prevent a water head from developing unless the seal is designed to impound water. # §56-20-10. Escapeways and Refuges.

10.1. Escapeways. - Underground Only.

10.1.a. Every mine shall have two (2) or more separate, properly maintained escapeways to the surface. A method of refuge shall be provided while a second opening to the surface is being developed. A second escapeway is recommended, but not required, during the exploration or development of an ore body.

10.1.b. In addition to separate escapeways, a method of refuge shall be provided for every employee who cannot reach the surface from his working place through at least two (2) separate escapeways within a time limit of one (1) hour when using the normal exit method. These refuges must be positioned so that the employee can reach one of them within thirty (30) minutes from the time he/she leaves his/her workplace.

10.1.c. Communication with refuge chambers. Telephone or other voice communication shall be provided between the surface and refuge chambers and such systems shall be independent of the mine power supply.

10.1.d. Escapeways.

10.1.d.1. Escape routes shall be:

10.1.d.1.A. Inspected at regular intervals and maintained in a safe, travelable condition;

10.1.d.1.B. Marked with conspicuous and easily read direction signs that clearly indicate the ways of escape.

10.1.e. Escape and evacuation plans. A specific escape and evacuation plan and revisions thereof suitable to the conditions and mining system of the mine and showing assigned responsibilities of all key personnel in the event of an emergency shall be developed by the operator and set out in written form.

Within forty-five (45) calendar days after promulgation of this rule, a copy of the plan and revisions thereof shall be available to an authorized representative of the Director. Also, copies of the plan and revisions thereof shall be posted at locations convenient to all persons on the surface and underground. Such a plan shall be updated as necessary and reviewed with employees.

10.1.e.1. The plan shall include:

10.1.e.1.A. Mine maps or diagrams showing directions of principal air flow, location of escape routes and locations of existing telephones, primary fans, primary fan controls, fire doors, ventilation doors, and refuge chambers. Appropriate portions of such maps or diagrams shall be posted at all shaft stations and in underground shops, lunchrooms, and elsewhere in working areas where persons congregate;

10.1.e.1.B. Procedures to show how the miners will be notified of emergency;

10.1.e.1.C. An escape plan for each working area in the mine to include instructions showing how each working area should be evacuated. Each such plan shall be posted at appropriate shaft stations and elsewhere in working areas where persons congregate;

10.1.e.1.D. A fire fighting plan;

10.1.e.1.E. Surface procedure to follow in an emergency, including the notification of proper authorities, preparing rescue equipment, and other equipment which may be used in rescue and recovery operations; and

10.1.e.1.F. A statement of the availability of emergency communication and transportation facilities, emergency power and ventilation and location of rescue personnel and equipment.

10.1.f. Check-in, check-out system.

10.1.f.1. Each operator of an underground mine shall establish a check-in and checkout system which shall provide an accurate record of persons in the mine. These records shall be kept on the surface in a place chosen to minimize the danger of destruction by fire or other hazards. Every person underground shall carry a positive means of being identified.

10.1.g. Provisions and maintenance of self-rescue devices.

10.1.g.1. A one-hour self-rescue device approved by MSHA and the National Institute for Occupational Safety and Health (NIOSH) shall be made available by the operator to all personnel underground. Each operator shall maintain self-rescue devices in good condition.

10.1.h. Location of self-rescue devices.

10.1.h.1. Self-rescue devices shall be worn or carried by all persons underground except:

10.1.h.1.A. Where the wearing or carrying of self-rescue devices is hazardous to a person, such self-rescue devices shall be located at a distance no greater than twenty-five (25) feet from such person.

10.1.h.1.B. Where a person works on or around mobile equipment, selfrescue devices may be placed in a readily accessible location on such equipment. ## 10.1.i. Two-way communication equipment for underground operations.

10.1.i.1. Telephones or other two-way communication equipment with instructions for their use shall be provided for communication from underground operations to the surface.

W. Va. Code R. § 56-20-11 Haulage. ### 11.1. Roads. - Traffic directions and warning signs

11.1.a. Traffic directions which differ from standard highway practice shall be posted on signs along the haulage roads at strategic points in letters at least three (3) inches high.

11.1.b. Well-marked signs conspicuously placed shall be properly located to alert drivers to existing danger areas, such as the approach to a dangerous curve or extreme grade.

11.1.c. Traffic rules, signals, and warning signs shall be standardized at each quarry.

11.1.d. Where side or overhead clearances on haulage roads or loading or dumping locations are hazardous to quarry workers, such areas shall be conspicuously marked and warning devices shall be installed when necessary to insure the safety of the workers.

11.1.e. Flashers, flares or other means of signaling shall be used to warn approaching drivers of a hazard created by an obstruction in the roadway.

11.1.f. Regulatory signs shall be used to indicate required method of traffic movement.

(Example: "Stop", "Yield", "One Way".)

11.1.g. Posted warning signs shall be used where necessary to indicate potential hazardous conditions. (Example: "Hill", "Curve", "Truck Crossing".)

11.1.h. Object marking shall be used to mark physical obstruction in or near the haulage way that presents possible hazards. (Example: Reflectors and high visibility paint.)

11.1.i. All signs and marking shall be displayed and utilized so as to be effective as possible.

11.1.j. Object marking shall be used to mark physical obstruction in or near the haulage way that presents possible hazards. (Example: Reflectors and high visibility paint.)

11.2. Haulage Roads. - Construction and maintenance.

11.2.a. Haulage roads shall be located an adequate distance from highwalls/benches and burden banks to minimize the danger of falling material onto personnel and equipment.

11.2.b. When dust created by haulage is thrown into suspension in such quantities that may obscure the vision of the operators of vehicles, an adequate means shall be taken to allay such dust.

11.2.c. Only authorized persons shall be permitted on haulage roads and at loading or dumping locations.

11.2.d. Berms or guards shall be provided on elevated roadways.

11.2.e. The width and grade to be utilized in haulage road construction shall be determined for each specific situation based upon terrain configuration, vehicle characteristics, and driver visibility for safe haulage.

11.2.f. Haulage roads shall be constructed of sufficient width to permit the driver to maneuver his/her vehicle to avoid striking unexpected obstacles on the roadway where reclamation regulations permit.

11.2.g. Provisions shall be made to adequately drain and remove excessive water from the haulage roads.

11.2.h. Haulage roads shall be constructed, installed and maintained in a manner consistent with speed and type of haulage operations being conducted to insure safe operation. All roads leading to and from work sites on which persons are expected to travel to and from work or to haul material or supplies, shall be of sufficient width and be maintained in good condition.

11.2.i. Haulage operations shall be stopped when the haulage surface has deteriorated to the extent that it presents a danger to the safety of the haulage operation.

11.2.j. When required by the Director or his authorized representative, approved runaway roads or suitable equivalent shall be provided on all haulage roads on which material is first hauled from such quarry.

11.2.k. All power lines constructed over haulage roads shall be maintained a minimum of twelve (12) feet above all equipment used on haulage roads including dump trucks in a raised position.

11.3. Haulage equipment .- Construction and maintenance.

11.3.a. Haulage trucks shall not be operated with dirty windshields, cracked, dirty, or broken rearview mirrors.

11.3.b. Supplies, materials, and tools other than small hand tools shall not be transported with persons in vehicles unless such vehicles are specifically designed to make such transportation safe.

11.3.c. All new haulage vehicles placed into service shall be equipped with an emergency steering and braking system.

11.3.d. Where required by the Director, trucks used for haulage of materials, persons or supplies shall be equipped with two-way communication instruments.

11.3.e. All haulage vehicles placed into service shall be equipped with an approved supplemental emergency braking system.

11.4. Haulage equipment. - Operation.

11.4.a. Haulage truck operators shall make sure his/her truck path is unobstructed, especially when starting or moving the trucks forward or backward.

11.4.b. Radio or visual contact shall be made with an operator of a haulage truck to insure that it is safe to approach the truck.

11.4.c. Vehicles shall follow at a safe distance. Passing shall be limited to areas of adequate clearance and visibility.

11.4.d. No persons shall work or pass under the buckets or booms of equipment.

11.4.e. Drivers shall drive their trucks according to the condition of the road and the weather.

At no time shall truck speeds exceed the safe predetermined speed limit that has been established on that haul road.

11.4.f. Haulage trucks traveling in the same direction shall not pass any vehicle until signals have been exchanged between both drivers and the vehicle to be passed pulls to the right side of the road.

11.4.g. Haulage trucks shall maintain a safe distance between the trucks they are following.

Other vehicles shall maintain a minimum of one (1) car length for each ten (10) m.p.h. of travel in back of the vehicle they are following.

11.4.h. When approaching a state or county road, drivers shall maintain their trucks under control to stop, yield right of way, or obey the signals of a flagman.

11.4.i. When the body of a haulage unit is being raised, no person will be permitted in close proximity where they may be endangered.

11.4.j. Materials or equipment required in the cab of haulage equipment shall be adequately secured.

11.5. Parked vehicles.

11.5.a. Lights, flares, or other approved warning devices shall be adequately located when parked equipment creates a hazard to vehicular traffic.

11.5.b. Mobile equipment shall not be left unattended unless the brakes are set. The wheels shall be turned into a bank or berm, or shall be blocked, when such equipment is parked on a grade.

11.6. Employee parking and mantrips.

11.6.a. On all active quarries, a designated area shall be provided for parking of employees' vehicles. All employees shall park their personal vehicles at the designated parking area. Sufficient illumination shall be provided at all parking areas and parking areas shall be maintained in good condition.

11.6.b. No vehicle or other conveyance used to transport persons to and from work areas at quarries shall be overcrowded and all persons shall ride in a safe position.

11.6.b.1. All mantrips shall have, at a minimum, a "ten (10) unit" first aid kit, twoway communication, audible warning devices, and be equipped with strobe lights and/or whip antenna with florescent flag or equivalent.

11.7. Loading and hauling large rocks. Large rocks shall be broken before loading if they could endanger persons or affect the stability of mobile equipment. Mobile equipment used for haulage of mined material shall be loaded to minimize spillage where a hazard to persons could be created.

11.8. Loading, hauling and unloading of equipment or supplies. Equipment and supplies shall be loaded, transported, and unloaded in a manner which does not create a hazard to persons from falling or shifting equipment or supplies.

11.9. Supplies, materials and tools on mantrips. Supplies, materials, and tools, other than small items that can be carried by hand, shall not be transported underground with persons in mantrips.

11.10. Travelways. Safe means of access shall be provided and maintained to all working places. # §56-20-12. General Provisions.

12.1. Horseplay. Horseplay, practical jokes, wrestling, fighting or other actions which threaten persons with personal injury, causing them to fear for their personal safety or causing damage resulting in interference with safe operations, shall be prohibited.

12.2. Alcohol and drugs. Persons under the influence of alcohol or drugs shall not be permitted on a quarry or attendant facility. An authorized representative of the Director may cause any miner to be withdrawn from the quarry and request the quarry operator to search and/or test the miner for alcohol, drugs or drug paraphernalia.

12.3. Housekeeping. Paths, walkways, stairways, and roadways shall be kept free of obstructions.

Structures and inside work areas shall be kept free of oil, spillage, litter, and dust accumulations.

12.4. Smoking. Smoking or open flames shall not be permitted in the following areas:

12.4.a. Within fifty (50) feet of the area where explosives are being stored, handled, or used;

12.4.b. Within one hundred fifty (150) feet of flammable liquid storage areas;

12.4.c. Within one hundred fifty (150) feet of liquefied and non-liquefied gas storage areas;

12.4.d. Within one hundred fifty (150) feet of the proximity of auger holes; and

12.4.e. Within one hundred fifty (150) feet of highwall miner openings.

12.5. Compressed air or gases.

12.5.a. Safety chains or suitable locking devices shall be used at connections to machines or high-pressured hose lines where a connection failure would create a hazard.

12.5.b. Compressors and compressed-air receivers shall be equipped with automatic pressure relief valves, pressure gauges, and drain valves.

12.5.c. Except where automatic shutoff valves are used, safety chains or other suitable locking devices shall be used at connections to machines of high-pressure hose lines of three-fourths (3/4) inch inside diameter or larger, and between high-pressure hose lines of three-fourths (3/4) inch inside diameter or larger, where a connection failure would create a hazard.

12.5.d. At no time shall compressed air be directed toward a person. When compressed air is used, all necessary precautions shall be taken to protect persons from injury.

12.6. No working alone. No person shall be assigned, or allowed, or be required to perform work alone in any area where hazardous conditions exist that would endanger his/her safety unless he/she can communicate with others, can be heard, or can be seen.

12.7. Stockpiles. Material shall not be stockpiled at or near exposed or buried gas lines.

12.8. Reclaiming hazards. No person shall be permitted to walk or stand immediately above a reclaiming area at or near a slurrage or storage pile where the reclaiming operations may expose him/her to a hazard.

12.9. Toilet facilities. Each operator of a quarry shall provide at least one sanitary toilet in a location convenient to each surface work site. All sanitary toilets shall be regularly maintained in a clean and sanitary condition. Where ten (10) or more employees use such facilities, sufficient toilets shall be furnished to provide approximately one (1) sanitary toilet for each ten (10) employees. Separate toilet facilities shall be provided for each sex except where toilet rooms will be occupied by no more than one (1) person at a time and can be locked from the inside.

12.10. Drinking water. An adequate supply of potable water shall be provided for drinking purposes in each worksite of the quarry. Water transported to all work sites shall be carried, stored and otherwise protected in sanitary containers.

12.11. Persons entering a quarry. Only authorized persons shall be permitted to enter a quarry. The quarry operator shall develop a plan to account for those authorized persons while at the quarry. The plan shall be available to a representative of the Director upon request.

W. Va. Code R. § 56-20-13 Electricity. ## 13.1. Performance of electrical work

13.1.a. No electrical work shall be performed on low-, medium-, or high-voltage distribution circuits or equipment, except by a qualified electrician or by a person trained to perform electrical work and to maintain electrical equipment under the direct supervision of a qualified electrician.

Disconnecting devices shall be locked out and suitably tagged by the person(s) who performs such work, except that in cases where locking out is not possible, such devices shall be open and suitably tagged by such person(s). They shall be removed only by the person(s) who installed them or if such person(s) is unavailable, by a qualified person authorized by the operator or his/her agent. Suitably tagged, as used in these sections, means that a sign such as, "Danger, Hands Off, Do Not Close, Men Working On Line", shall be attached to the locked switches. The signs or tags shall bear the name and date of the person(s) who installed the tag. Keys used to lock out switches shall be kept only on the person(s) who is performing the work on the equipment. Such locks shall be provided by the operator.

13.1.b. All power circuits and electrical equipment shall be de-energized before work is performed on such circuits and equipment, except when necessary for troubleshooting or testing.

13.1.c. All wiring and equipment installed shall meet the requirements of the National Electric Code (NEC) at the time installed. After the effective date of this rule, documentation is to be maintained to establish dates of new installations. ## 13.2. Transformers.

13.2.a. All surface transformers, unless of the construction which will eliminate shock hazard, or unless installed at least eight (8) feet above ground, shall be enclosed in a house or surrounded by a fence at least six (6) feet high. If the enclosure is of metal, it shall be grounded effectively, and the gate or door to the enclosure shall be kept locked at all times, unless authorized persons are present.

13.2.b. Transformers shall be provided with adequate overload protection.

13.2.c. "Danger-High Voltage" signs with voltage indicated shall be posted conspicuously at all transformer enclosures, high potential switch boards, and other high potential installations.

13.3. Electrical equipment generally.

13.3.a. Capacitors used for power factor connections shall have suitable drain off resistors or other means to protect workers against electrical shock following removal of power.

13.3.b. Dry wooden platforms, insulating mats, or other electrical nonconductive materials shall be kept in place at all switchboards and power-control switches where shock hazards exist. However, metal plates on which a person normally would stand and which are kept at the same potential as the grounded, metal, non-current-carrying parts of the power switches to be operated may be used.

13.3.c. Reverse current protection shall be provided at storage battery charging stations to prevent the storage batteries from energizing the power circuit in the event of power failure.

13.3.d. All electric conductors shall be sufficient in size and have adequate current carrying capacity and be of such construction that a rise in temperature resulting from normal operation will not damage the insulating materials.

13.3.e. All electrical connections or splices and conductors shall be mechanically and electrically efficient and suitable connectors shall be used. All electric connections or splices and insulating wires shall be reinsulated at least to the same degree of protection as the remainder of the wire. Splices made shall provide continuity of all components.

13.3.f. High-potential electrical conductors shall be covered, insulated, or placed to prevent contact with low potential conductors.

13.3.g. All electrical equipment that is provided with switches or controls shall be safely designed, constructed, and installed.

13.3.h. Single phase loads shall be connected phase-to-phase when connected to resistance grounded systems.

13.3.i. Each ungrounded conductor or telephone wire that leads underground and is directly exposed to lightning shall be equipped with suitable lightning arrestors of approved type within one hundred (100 ) feet of the point where the circuit enters the mine. Lightning arrestors shall be connected to a low resistance grounding medium on the surface and shall be separated from neutral grounds by a distance of not less than twenty-five (25) feet. Cables in rigid conduit or shielded are not considered directly exposed.

13.4. Testing maintenance and repair of electrical equipment.

13.4.a. All electrical equipment, except circuit breakers, shall be examined daily by a competent person to assure safe operating condition.

13.4.a.1. All electrical equipment shall be examined monthly, tested and properly maintained by a qualified electrician. All systems and controls for the emergency shutdown of equipment shall be tested at least monthly. When a potential dangerous condition is found on electrical equipment, such equipment shall be removed from service until the condition is corrected by a qualified electrician. A record of such examination and the action taken when the potentially dangerous condition is found shall be kept and made available to an authorized representative of the Director of the West Virginia Office of Miners' Health, Safety and Training and to all miners at such quarry.

13.4.b. Circuit breakers equipped with auxiliary tripping devices shall be tested and examined at least once each month by a qualified electrician and a record of such examination shall be kept for one (1) year and made available to an authorized representative of the Director and to the miners at such quarry. Circuit breaker tests shall include:

13.4.b.1. Breaking continuity of the ground check conductor where ground check monitoring is used;

13.4.b.2. Actuating all of the auxiliary protective relays; and

13.4.b.3. Visual observation of all components of the circuit breaker and its auxiliary devices. Such repairs or adjustments as are indicated by such tests and examination shall be carried out immediately.

13.4.c. Continuity and resistance of grounding systems shall be tested immediately after installation, repair, and modification, and annually thereafter. A record of the resistance measured during the most recent test shall be made available upon request by the Director or his duly authorized representative. # 13.5. Circuit breakers.

13.5.a. Automatic circuit breaking devices or fuses of the correct type and capacity shall be installed so as to protect all electrical equipment and circuits against short circuit and overload. Three (3) phase motors on electrical equipment shall be provided with overload protection that will de-energize all three (3) phases in the event that any phase is overloaded. As used in this section, adequate current interrupting capacity requires that the fuse or circuit breaker is capable of interrupting the maximum short circuit current that the circuit may conduct without destruction to the device.

13.5.b. Electric equipment shall be provided with devices that will permit the equipment to be de-energized quickly in the event of an emergency. 13-5.c. One (1) circuit breaker may be used to protect two (2) or more branch circuits if the circuit breaker is adjusted to afford over-current protection for the smallest conductor.

13.5.d. All circuits used to power portable or mobile equipment shall contain either a direct or derived neutral which shall be grounded through a suitable resistor at the power center, and a grounding circuit, originating at the grounded side of the grounding resistor, shall extend along with the power conductors and serve as a grounding conductor for the frames of all the electrical equipment supplied power from the circuit, except that the Director or his authorized representative may permit underground low and medium voltage circuits to be used underground to feed such stationary electrical equipment if such circuits are either steel armored or installed in grounded rigid steel conduit throughout their entire length. The grounding resistor, where required, shall be of the proper ohmic value to limit the ground fault current to twenty-five (25) amperes. The grounding resistor shall be rated for maximum fault current continuously and insulated from ground for a voltage equal to the phase-to-phase voltage of the system.

13.5.e. Power circuits serving three (3) phase alternating current equipment serving portable or mobile equipment shall be protected by suitable circuit breakers of adequate interrupting capacities which are properly tested and maintained as prescribed by the Director. Such breakers shall be equipped with devices to provide protection against under voltage, grounded phase, short circuit and over current.

13.5.f. Disconnecting devices shall be installed at the beginning of branch lines in high voltage circuits and equipped or designed in such a manner that it can be determined by visual observation that the circuit is de-energized when the switches are open.

13.5.g. Circuit breakers and disconnecting switches shall be marked for identification.

13.5.h. Stationary and/or temporary electrical equipment shall not be moved while energized unless written approval is given by the Director.

13.6. Cables.

13.6.a. Cables and power wires including, but not limited to, telephone, communication and control wires, shall be insulated adequately and fully protected from physical damage. No cable will be hung in a manner which will damage the insulation or conductors.

13.6.b. Trailing cables shall be clamped to machines in a manner to protect the cables from damage and to prevent strain on the electrical connections.

13.6.c. Trailing cables shall be adequately protected to prevent damage by mobile equipment.

13.6.d. Short circuit protection for trailing cables shall be provided by an automatic circuit breaker or other no less effective device, approved by the Director, of adequate current interrupting capacity in each ungrounded conductor. Disconnecting devices used to disconnect power from trailing cables shall be plainly marked and identified and such devices shall be equipped or designed in such a manner that it can be determined by visual observation that the power is disconnected and shall be labeled to show which unit they control.

13.6.e. Cable/cable couplers shall be constructed so that the ground check continuity conductor shall be broken first and the ground conductor shall be broken last when the coupler is being uncoupled and shall not be coupled or broken under load.

13.6.f. When two (2) or more trailing cables junction to the same distribution center, means shall be provided to assure against connecting the trailing cable to the wrong circuit breaker.

13.6.g. One temporary splice may be made in any portable trailing cable. Such trailing cable may only be used for the next twenty-four (24) hour period. Temporary splices in trailing cables shall be made in a workmanlike manner and shall be mechanically strong and well insulated. Trailing cables or hand cables which have exposed wires or which have splices that heat or spark under load shall not be used.

As used in this section, the term splice means a mechanical joining of one (1) or more conductors that have been severed.

13.6.h. When permanent splices in trailing cables are made, they shall be:

13.6.h.1. Mechanically strong with adequate electrical conductivity and flexibility;

13.6.h.2. Effectively insulated and sealed so as to exclude moisture;

13.6.h.3. Vulcanized or otherwise treated with suitable materials to provide flameresistant qualities and good bonding to the outer jacket; and

13.6.h.4. Made in accordance with the manufacturer's specifications.

13.6.i. Trailing cables for medium voltage circuits shall include grounding conductors, a ground check conductor, and grounded metallic shields around each power conductor or a grounded metallic shield over the assembly, except that on equipment employing cable reels, cables without shields may be used if insulation is rated two thousand (2,000) volts or more.

13.6.j. Telephone and low-potential signal wire shall be protected, by isolation or suitable insulation, or both, from contacting energized power conductors or any other power source.

13.7. Grounding.

13.7.a. All metallic shields, armors and conduits enclosing power conductors shall be electrically continuous throughout and shall be grounded.

13.7.b. The attachment of grounding wires to other grounded power conductors will be approved if separate clamps, suitable for such purpose, are used and installed to provide a solid connection.

13.7.c. Metallic frame, casing, and other enclosures of electrical equipment that can become alive through failure of insulation or by contact with energized parts shall be grounded. Resistance Grounded Systems shall have a ground monitoring system to monitor continuously the grounding circuit to assure continuity. The ground check circuit shall cause the circuit breaker to open when either the ground or pilot check wire is broken. Other, no less effective devices, may be approved by the Director or his authorized electrical representative, to assure such continuity.

13.7.d. In instances where single phase 110/220-volt circuits are used to feed electrical equipment, the only method of grounding that will be approved is the connection of all metallic frames, casings or other enclosures of such equipment to a separate grounding conductor which establishes a continuous connection to a grounded center tap of the transformer. In the case of 120-volt single winding transformers used to feed electrical equipment, the only method of grounding that will be approved is the connection of all metallic frames, casings and other enclosures of such equipment to a separate grounding conductor which establishes a continuous connection to a grounded center tap or a grounded leg of the transformer.

13.7.e. Where batteries are being charged without removing them from mobile equipment, or are sitting on wooden blocks, the frames of the machine or battery case shall be grounded to the grounded frame of the charger to prevent the machine from becoming alive through failure of insulation in the charger.

All ground conductor connections shall be clamped or bolted connections.

13.7.f. All buildings and structures shall be earth grounded if they are constructed of metal.

Also, any building or structures which could become alive with electrical energy shall be effectively grounded.

13.7.g. Guy wires from poles supporting high voltage power lines shall be securely connected to the system grounding medium or shall be provided with insulators rated at the highest voltage.

13.7.h. All 120/240 volt AC circuits used to power electrical devices used in wet locations shall be protected with ground fault circuit interrupting devices.

13.8. Energized lines generally.

13.8.a. All guy wires shall be marked or flagged when equipment is working in the area.

13.8.b. Energized power lines crossing an access road or work area shall be identified by warning signs visible from each direction. Warning signs shall include height if lines for clearance and made of reflective material. In no event shall any high voltage power line be installed less than fifteen (15) feet above ground, walkways, or working areas.

13.8.c. All equipment near energized power lines with the following voltages shall maintain the following clearances: 10 to 69,000-10 feet; 69,000 to 114,000-12 feet; 115,000 to 229,000-15 feet; 230,000 to 344,000-20 feet; 345,000 to 499,000-25 feet; 500,000 or more-35 feet.

13.8.d. All personnel, except those directly involved in the operation, shall stay clear of the equipment working near energized lines.

13.8.e. A person shall be designated to observe clearance of the equipment and give timely warning for all operations where it is difficult for the operator to maintain the desired clearance by visual means.

13.8.f. Movement of equipment; minimum distance for high voltage lines. When any part of any equipment operated on the surface of any quarry is required to pass under or by any energized highvoltage powerline and the clearance between such equipment and powerline is less than that specified above, such powerlines shall be de-energized or other precautions shall be taken to prevent contact with the powerlines.

13.8.g. De-energization of powerlines. Any overhead wire shall be considered to be an energized line unless and until the person owning such line or electrical utility authorities verifies that it is not an energized line and it has been visibly grounded.

13.8.h. If equipment comes in contact with an energized line, the operator shall stay in the equipment until notified by a qualified electrician or foreperson that the line is de-energized.

13.9. High voltage.

13.9.a. High voltage lines on the surface shall be de-energized, locked out, tagged out, and grounded as near the work area as possible before work is performed on them. Repairs may be permitted to energized surface high voltage lines, if such repairs are made by a qualified electrician in accordance with the procedures and safeguards including, but not limited to, a requirement that the operator of such quarry provide tests of, and maintain, protective devices used in making such repairs. No work shall be performed on any high voltage line on the surface which is supported by any pole or structure which also supports other high voltage lines until all lines supported on that pole are de-energized and grounded.

13.9.b. No high voltage line shall be regarded as de-energized for the purpose of performing work on it until it has been determined by a qualified electrician that such high voltage line has been de-energized and grounded. Such qualified electrician shall, by visual observation, determine that the connecting devices on the high voltage circuit are in open position and insure that each ungrounded conductor of the high voltage circuit upon which work is to be done is properly connected to the system grounding medium.

13.9.c. An energized high voltage line may be repaired only when the operator has determined that such repairs cannot be scheduled during period when the power circuit could be properly deenergized and grounded. Such repairs will be performed on power circuits with a phase-to-phase nominal voltage no greater than fifteen thousand (15,000) volts. The weather conditions shall be noted so that it would not interfere with such repairs or expose those persons assigned to such work to an imminent danger.

The operator shall designate a person qualified to perform such work as the person responsible for carrying out such repairs. In order to insure protection for himself/herself and other interested persons assigned to perform such repairs from the hazards of said repairs, he/she must prepare and file with the operator: (1) a general description of the nature and location of the damage or defect to be repaired; (2) the general plan to be followed in making of such repairs; (3) a statement that a briefing of all qualified electricians assigned to make such repairs was conducted informing them of the general plan, their individual assignments, and the dangers inherent in such assignments; and (4) a list of proper protective equipment and clothing that will be provided, and (5) such other information as the person designated by the operator feels necessary to describe properly the means or methods to be employed in such repairs. All statements obtained by the operator shall be recorded and contain a notation of the time, date, location and general nature of the repairs.

13.9.d. When two (2) or more persons are working on an energized high voltage surface line simultaneously and anyone of them is within reach of another, such persons shall not be allowed to work on different phases or equipment with different potentials.

13.9.e. All persons performing work on energized surface high voltage lines shall wear protective rubber lineman's gloves, sleeves, and climber guards if climbers are worn. Protective rubber gloves shall not be worn wrong side out or without protective leather gloves. Protective devices worn by a person assigned to perform work on high voltage surface lines shall be worn continuously from the time he/she leaves the ground until he/she returns to the ground and if such devices are employed for extended periods, such persons shall visually inspect the equipment assigned him/her for defects before each use and in no case, less than twice each day.

13.9.f. All protective equipment used for work on energized high voltage surface lines that are required to be tested by the ASTM standards shall be electrically tested in accordance with ASTM standards.

13.9.g. Disconnecting or cutout switches on energized high voltage lines shall be operated only with insulated sticks, fuse tongs or pullers which are adequately insulated, maintained and tested to protect the operator from the voltage to which he/she is exposed. When such switches are operated, the person operating such devices shall wear protective rubber gloves.

13.9.h. No new additional circuits may be tied to a high voltage line when such line is energized.

13.9.i. Solely for purposes of grounding ungrounded high voltage power systems, grounded messenger wires used to suspend the cable of such system may be used as a grounding medium.

13.9.j. All high voltage circuits supplying portable, mobile or stationary equipment shall contain either a direct or derived neutral which shall be grounded through a suitable resistor at the source transformer and a grounding circuit originating at the grounded side of the grounding resistor shall extend along the power conductors and serve as a grounding conductor for the frames which receive power from that circuit. The grounding resistor shall be of the proper resistance value to limit the voltage drop in the grounding circuit external to the resistor to not more than one hundred (100) volts under fault conditions, the grounding resistor shall be rated for maximum volt current continuously and insulated from ground for a voltage equal to the phase-to-phase voltage of the system.

13.9.k. High voltage resistant grounded system serving portable or mobile equipment shall include a failsafe ground check circuit to monitor continuously the grounding circuit to assure continuity and the fail safe ground check circuit shall cause the circuit breaker to open when either the ground or pilot check wire is broken or other no less effective device approved by the Director or his authorized representative to assure such continuity.

13.9.1. High voltage multi-conductor cables used in resistant grounded systems shall be equipped with metallic shields around each power conductor with one (1) or more ground conductors having a total cross sectional area of not less than one-half (1/2) the power conductor and with an insulated internal or external conductor not smaller than #10 A.W.G. for the ground continuity check circuit. # 13.10. Movement of electrical equipment.

13.10.a. Power centers, portable transformers, cable couplings and enclosures shall be deenergized before they are moved from one location to another. Except that when equipment powered by source other than such centers or transformers is not available, the Director may permit such centers or transformers to be moved while energized if he determines that such equivalent or greater hazard may otherwise be created and if they are moved under the supervision of a qualified electrician, and if such centers and transformers are examined prior to such movement by such person and found to be grounded by methods approved by an authorized representative of the Director and otherwise protected from hazard to the miner.

A record shall be kept of such examination for one (1) year and made available to a representative of the Director upon request.

13.10.b. High voltage cables other than trailing cables shall not be moved or handled at any time while energized as permitted under this section.

13.10.c. Quarry operators shall require all people handling high-voltage energized portable trailing cables to wear approved and tested insulated workmen's gloves. All such protective equipment shall be furnished by the operator. Rated gloves used when handling energized portable trailing cables shall be electrically tested every thirty (30) days and a record of that test shall be kept for one (1) year and made available to a representative of the Director upon request. If straps or hooks are used, those straps and hooks shall be non-conductive and designed for that purpose.

13.10.d. Cables energized to potentials in excess of one hundred fifty (150) volts, phase-toground, shall not be moved with equipment unless sleds or slings, insulated from such equipment, are used.

When such energized cables are moved manually, insulated hooks, tongs, ropes, or slings shall be used unless suitable protection for persons is provided by other means. This does not prohibit pulling or dragging of cable by the equipment it powers when the cable is physically attached to the equipment by suitable mechanical devices and the cable is insulated from the equipment in conformance with other standards in this part.

13.11. Other electrical apparatus or areas.

13.11.a. Ladders for electrical work shall be of nonmetal type.

13.11.b. No electrical machinery or apparatus shall have unguarded exposed energized parts.

13.11.c. Lighting plants shall be located so as not to obstruct or be a safety or health hazard to any part of the quarrying operation or miners.

13.11.d. Employees performing energized electrical work shall be provided with suitable personal protective equipment. All such protective equipment shall be furnished by the operator.

13.11.e. Rooms in which circuit breakers or controls are installed shall have two (2) separate and distinct travelable passageways, designated as escapeways, unless waived by the Director.

13.11.f. All lights with less than eight (8) feet overhead clearance shall be guarded. Lamp sockets shall be of a weatherproof type where they are exposed to weather or wet conditions that may interfere with illumination or create a shock hazard.

13.11.g. Electric lights or other approved methods of lighting shall be installed so that they do not come in contact with combustible materials, and the wires shall be supported by suitable insulators and fastened securely to the power conductors.

13.11.h. A ten (10) pound fire extinguisher shall be provided for each electrical installation.

13.11.i. Combustible materials shall not be stored in electrical rooms and transformer substations. ## §56-20-14. Compressed Gases and Welding.

14.1. Handling and use of welding or cutting equipment generally.

14.1.a. The clothing of any person using any welding or cutting equipment in or about a quarry shall be reasonably free of petroleum products. When handling oxygen cylinders or apparatus, the use of oily hands or gloves is prohibited.

14.1.b. Compressed gases shall not be used under direct pressure from tanks or cylinders but must be used under reduced pressures not exceeding that recommended by the manufacturers.

14.1.c. At no time shall compressed air be directed toward a person when in use.

14.1.d. A suitable wrench designed for compressed tanks shall be in the possession of the person authorized to use the equipment.

14.1.e. Oxygen and gas cylinders and their contents shall be used solely for their intended purposes.

14.1.f. Only an approved type spark-lighter shall be used for lighting torches.

14.1.g. All welding and cutting equipment shall be continuously maintained in a safe condition. # 14.2. Storage and use of compressed gas cylinders.

14.2.a. Cylinders shall be secured in an upright position while stored or in use (except as necessary for a short period of time while cylinders are being hoisted or carried). Valve protection caps shall be hand tight when cylinders are stored. The storage area shall be well ventilated, protected and at least twenty (20) feet from highly combustible materials such as oil or other flammables.

14.2.b. Signs at storage areas of cylinders shall be conspicuously posted, "Danger No Smoking, Matches or Open Flame", or similar type warning.

14.2.c. When storing oxygen cylinders and acetylene or other fuel gas cylinders, a minimum distance of twenty (20) feet or a noncombustible barrier at least five (5) feet high having a fire resistance rating of at least one-half (1/2) hour shall be maintained between the oxygen cylinders and other fuel gas cylinders. # 14.3. Transportation of compressed gas cylinders.

14.3.a. When transporting cylinders, they shall be securely mounted with regulators removed, cylinder valves closed and protective valve caps replaced except in conformance with the following provisions:

14.3.a.1. Cylinders shall remain in a substantially constructed compartment while the gauges are attached and shall be secured against movement.

14.3.a.2. The substantially constructed compartment shall be designed specifically for the maintenance vehicles carrying it; the cylinders shall be secured against movement and be placed at no greater than a forty-five (45) degree angle.

14.3.a.3. The cylinder regulators, if not in enclosed compartments, shall be adequately covered to provide protection when regulators are left attached to cylinders.

14.3.a.4. The substantially constructed compartments shall be secured to the maintenance vehicle in such a manner to prevent the entire compartment from overturning at any time.

14.3.a.5. If the cylinders are being transported in closed compartments, the compartments shall be adequately ventilated, and all doors on the substantially constructed compartments shall be closed and secured when not in use.

14.3.a.6. Cylinders, gauges, hoses, connectors, valve stems and torches shall be checked for damage and proper fit immediately following transportation and prior to use.

14.3.a.7. The cylinder valves shall be in a shut-off position, and the hoses relieved of pressure when not in use and when being transported.

14.3.a.8. All substantially constructed compartments shall be approved by the Director or his authorized representative prior to initial use.

14.3.b. Gas cylinders shall not be transported on vehicles used to transport employees unless separate approved compartments are provided.

14.4. Welding preparations.

14.4.a. Person or persons assigned to use and work with welding and cutting tools shall be properly instructed of their uses and fully understand the danger of their misuse.

14.4.b. All persons welding, cutting, heating, brazing or soldering shall be provided with goggles or shields, gloves, safe type spark-lighter and proper torch tip cleaner.

14.4.c. Prior to welding, cutting, heating, brazing or soldering in areas likely to contain methane, an examination shall be made with an approved device. Examinations for methane shall be made immediately before and periodically during welding, cutting, heating, brazing or soldering and such work shall not commence or continue in air which contains one percent (1%) or more methane.

14.4.d. Welding operations shall be shielded when necessary and the area shall be well ventilated.

14.4.e. Fire watchers shall be used whenever welding, cutting, heating, brazing or soldering is performed at locations where a fire hazard exists.

14.4.f. Adequate fire protection shall be provided at the location where welding, cutting, heating, brazing and soldering is performed.

14.5. Acetylene welding.

14.5.a. Only approved apparatus such as torches, regulators, pressure reducing valves, hoses, back flow check valves and gas cylinders shall be used.

14.5.b. Back flow check valves shall be attached to the exhaust side of a regulator before using.

14.5.c. Repairs involving the pressure system of compressors, receivers, or compressed-airpowered equipment shall be prohibited until the pressure has been relieved from the part of the system to be repaired.

14.5.d. Gas cylinders shall be protected from contacting sparks, hot slag or flame during welding, cutting, heating, brazing or soldering.

14.5.e. Regulators shall be adequately attached to the cylinders before using their contents.

14.5.f. The cylinder valve shall be opened partially for an instant and then closed before connecting a regulator. Such person performing said act shall stand to one side (not in front) of the outlet when opening the cylinder valve.

14.5.g. When removing a regulator from a cylinder bottle valve, such valve shall be closed and the gas released from the regulator.

14.5.h. Empty cylinders shall be marked as such and removed from the work area.

14.5.i. Oxygen and acetylene tanks or cylinders or compressed gases shall be protected from power lines or energized electrical machinery or equipment. These tanks or cylinders shall be kept away from the place where the cutting is being done in order to prevent damage or accident and to prevent heat from affecting such tanks or cylinders.

14.6. Electrical welding.

14.6.a. All connections at the welding machine shall be checked before starting such operations.

14.6.b. The ground lead shall be adequately attached to the work.

14.6.c. Magnetic work clamps shall be free of adherent metal particles or splatter on contact surfaces.

14.6.d. Coiled welding cable shall be adequately separated to avoid serious overheating and damage to cable insulation.

14.6.e. The welding machine frame shall be grounded as specified by the current NEC.

14.6.f. The welding machine shall be free of leaks, cooling water, shielding gas and engine fuel.

14.6.g. Proper switches shall be provided for de-energizing the welding machine.

14.6.h. Electrode holders shall be located so they do not make electrical contact with persons, conducting objects, fuel or compressed gas cylinders. Energized electrode holders may be laid down or placed only in approved nonconductive trays or holders.

14.6.i. There shall be splice-free cables within ten (10) feet of the electrode holder.

14.6.j. The welding cable shall not coil or loop around parts of the welder's body.

14.6.k. When welding has ceased for any substantial period of time, all electrodes shall be removed from holders. Holders shall be located so that accidental contact cannot occur.

14.6.1. Where work permits, arc welders shall be enclosed by individual booths or noncombustible screens painted with a finish of low reflectivity such as zinc oxide or lamp black.

14.6.m. Any exposed wiring in the welding cable shall be reinsulated to the same degree as the original welding cable.

14.7. Safety hazards.

14.7.a. Welding, cutting, and burning shall be prohibited in areas containing combustible dust.

14.7.b. After welding operations, unattended areas shall be posted with warning signs to prevent workers from coming into contact with hot metals.

14.7.c. Welders shall report any equipment defect or safety hazard to his/her supervisor and discontinue welding until safety has been assured.

14.7.d. When welding machines are used to provide an external power source, the welding machine's 120/240 volt AC receptacles shall be provided with ground fault circuit interrupting protection.

14.8. Maintenance and repairs.

14.8.a. Cylinders, valves, couplings, regulators, hoses and apparatus shall be kept free from oil, dirt, greasy substances, and maintained in good condition.

14.8.b. Tests for leaks on hoses, valves, or gauges shall be made with a soft brush and soapy water or soap suds.

14.8.c. Welding machines, electrodes, and cables shall be examined weekly for wear and/or damage.

W. Va. Code R. § 56-20-15 Equipment. ## 15.1. Mobile equipment

15.1.a. Immediately prior to the beginning of each working shift, all equipment except licensed vehicles subject to state highway inspection requirements shall be examined by the equipment operator or a mechanic if designated by the foreperson in charge of the operation daily for safety defects. The person performing such examination shall record his/her findings in ink or indelible pencil on a form approved by the Director; such form shall be given to the foreperson or his/her assistant within four (4) hours after the beginning of the start of the working shift. The person performing the above examination shall sign the report form and the foreperson receiving such form shall initial upon receipt. A record of all above such examinations shall be maintained for thirty (30) days and made available to an authorized representative of the Director and to the miners at the quarry.

15.1.b. Immediately prior to the beginning of each working shift, equipment operated by independent contractors in a quarry shall be examined by the equipment operator for safety defects, other than light duty vehicles subject to state inspection. The person performing such examination shall record his/her findings in ink or indelible pencil on a form approved by the Director; such form shall be signed by the person performing the examination and such form shall remain with the vehicle for thirty (30) days and upon request be made available to an authorized representative of the Director.

15.1.c. Imminent danger equipment defects shall be reported immediately to the foreperson and tagged out and corrected before the equipment is put into operation. The foreperson shall record the defect in the pre-shift book.

15.1.d. All mobile equipment shall be operated and maintained according to the manufacturer's instructions.

15.2. Operation of shovel, draglines, tractors, backhoes, loaders, etc.

15.2.a. No person(s) shall enter the work area of any mobile equipment until first making positive contact either audible or visual with the equipment operator(s). Equipment operators shall cease operating their equipment when any person is within such proximity as to be endangered.

15.2.b. At startup or anytime mobile equipment is stopped, other than during the normal work cycle, operators shall sound a signal distinguishable from the surrounding noise level such as a whistle, bell, horn or other approved device, before moving forward or backward, and all persons not in the clear shall respond immediately.

15.2.c. Equipment operators shall not leave their cabs without lowering all raised equipment to the ground.

15.2.d. When the equipment operator is present, he/she shall be notified before anyone else attempts to mount or dismount the equipment.

15.2.e. Persons shall not be permitted in the immediate vicinity of shovels, draglines, and backhoes unless in the line of duty.

15.2.f. Walkways and platforms on equipment shall be maintained in a safe condition and shall be equipped with safe handrails.

15.2.g. Equipment that revolves in a horizontal arc on a turntable shall have a minimum clearance of four (4) feet from the highwall or other obstructions.

15.2.h. Operators of shovels and draglines shall not leave their cabs to wet the digging brake or dog unless the master clutch is in the "Off"' position. Operators of shovels and draglines shall have visual contact, when possible, with the person assigned to setting the digging brake or dog.

15.2.i. Operators shall not leave the cab of the shovel, dragline or crane without placing the controls into the "Off' position. If the power should fail, the controls shall be placed in the "Off" position.

15.2.j. All ropes shall be securely attached to the drum and the dipper by at least four (4) suitable wire rope clips or properly wedged. Drums shall have at least three (3) wraps of cable on at all times.

15.2.k. Riding a dipper or bucket shall be prohibited.

15.3. Maintenance and repairs.

15.3.a. All safety equipment on all machinery shall be maintained in a safe working condition.

15.3.b. Mobile and stationary equipment shall be maintained in a safe operating condition.

Equipment in unsafe condition shall be removed from service immediately. Mine operators shall maintain equipment in a safe operating condition. Equipment operators shall exercise reasonable care in the operation of the equipment entrusted to them and shall promptly report defects known to them: Provided, if equipment has been taken out of service by being properly tagged out, the operator shall not be issued a violation under the provision of this section: Provided, however, such tag placed on such equipment shall indicate the date and time such equipment was removed from service. The person removing the equipment from service and tagging such equipment shall place his/her signature upon the tag.

15.3.c. Good housekeeping shall be practiced on all equipment. All equipment shall be cleaned as necessary to maintain the equipment reasonably free of combustible substances.

15.3.d. No persons shall work on a piece of mobile equipment in a raised position until it has been securely blocked in place.

15.3.e. No work shall be performed under machinery or equipment that has been raised until such machinery or equipment has been securely blocked in place.

15.3.f. While greasing or doing repair work on a boom of a shovel, dragline, or backhoe, the boom shall be lowered to a position whereby the work can be done from the ground or the workers shall use personal fall protection equipment. This does not apply on shovels, draglines, or backhoes that are equipped with safe handrails or ladders.

15.3.g. Dippers of buckets or shovels, draglines and backhoes shall be lowered for repairs.

15.3.h. Repairs or maintenance shall not be performed on equipment until the power is off and the equipment is blocked against motion, except where the movement of the machine or parts is necessary to make adjustment.

15.4. Warning devices, lights, brakes.

15.4.a. All mobile equipment shall be equipped with an approved automatic warning device which shall give a clearly distinguishable alarm when such equipment is in reverse. Any motor vehicle having an obstructed rear view shall have a reverse signal alarm audible above the surrounding noise level or the vehicle is backed up only when an observer signals that it is safe to do so.

15.4.b. Equipment such as forklifts, front-end loaders, tractors, dozers, and graders shall be provided with an approved audible warning device that can be controlled manually by the operator.

15.4.c. Lights shall be provided on both ends of equipment when equipment is being worked other than during daylight hours. Lights provided on equipment by manufacturers of said equipment shall be deemed adequate and in compliance with the rules. Also, lights shall be provided under other conditions such as fog, etc.

15.4.d. All braking systems installed on the equipment shall be maintained in functional condition. Service brakes shall be able to stop the equipment on the maximum grade the equipment travels.

Parking brakes shall be able to hold the equipment stationary on the maximum grade the equipment travels.

The service braking system using stored energy shall be equipped with a warning device that activates when the system energy drops below the manufacturer's specified minimum operating energy level. # 15.5. Dump trucks and dumping.

15.5.a. Dump bodies of trucks shall be properly blocked when raised for any purpose except dumping of a load.

15.5.b. No person shall be permitted in or on the cargo space of dump trucks while being loaded.

15.5.c. No person shall be allowed in the cab of an off-road dump truck while the truck is being loaded with a power shovel, front-end loader, or backhoe unless the cab is shielded.

15.5.d. Truck cabs where rear vision is impaired shall be equipped with adequate rearview mirrors on both sides.

15.5.e. The bucket of an excavator, loader or shovel shall not be swung over the cab of a truck. ## 15.6. Equipment generally.

15.6.a. No equipment or machinery shall be altered or modified in a manner that reduces the level of safety.

15.6.b. Road maintenance equipment such as graders or other equipment normally used shall be equipped with readily visible flashing light(s).

15.6.c. All equipment, when equipped with a safety bar for automatic transmission, shall be set in locked position before the operator leaves the cab. Operators of dozers that are equipped with standard transmission shall lock the park brake, place the transmission in a neutral position, and lock the clutch in before leaving the cab. Safety bar levers for automatic transmissions shall be in working condition.

15.6.d. All steps, handrails, walkways and platforms on mining equipment shall be maintained in a safe condition.

15.6.e. Electrically powered mobile equipment shall not be left unattended unless the master switch is in the "Off' position. All operating controls shall be placed in neutral position and the brakes set or other equivalent precautions taken against rolling.

15.6.f. A tow bar or other approved device shall be used for towing equipment. A safety chain shall be used in conjunction with a tow bar.

15.6.g. All exhaust tail pieces shall be positioned and properly maintained to prevent carbon monoxide and other toxic fumes from entering an operator's compartment.

15.6.h. The grader shall travel in the direction of normal traffic except during grading operations in a local area.

15.6.i. Emergency stop switches shall be provided and maintained to quickly de-energize electrically powered mobile equipment engines in the event of an emergency. The switches shall be located in the operator's cab and also at a location accessible from ground level.

15.6.j. Electrical compartments in use on electrically powered mobile equipment shall be maintained free of dust, water, and oil accumulations. Electrical compartment panel doors shall be secured in a manner to prohibit unauthorized access.

15.6.k. Wheel covers (hubcaps) shall be provided for electric wheel motors, shall be maintained in good condition, and shall be adequately secured.

15.6.1. Steering apparatuses of all mobile equipment shall be maintained in a safe operating condition according to manufacturers' specification.

15.6.m. Each employee working in a quarry shall be required to wear seat belts in a vehicle where there is a danger of overturning and where roll protection is provided. Seat belts shall be worn by all drivers of trucks, 5-ton or greater, while operating their trucks at a quarry.

15.6.n. Machines with movable parts used at quarries which are capable of coming into contact with its operating controls or are capable of pinning the operator between the movable part and its controls shall be equipped with a panic bar or suitable mechanical means to prevent such contact or pinning of the operator. ## 15.7. Glass, doors and mirrors.

15.7.a. Cab windows of glass on equipment shall be safety glass or equivalent material with good visibility, in good condition, not broken or cracked to such extent that it can be felt, and kept clean.

15.7.b. All mobile equipment provided with a windshield shall be provided with windshield wipers, and such wipers shall be maintained in good operating condition.

15.7.c. All doors on mobile equipment shall be maintained in good operating condition.

15.7.d. Adequate mirrors shall be maintained on all mobile equipment. Mirror(s) provided on equipment by manufacturers of said equipment shall be deemed adequate and in compliance with the rules. ## 15.8. Guards.

15.8.a. Fan blades, shafts, gears, flywheels, coupling, and similarly exposed moving machine parts which may be contacted by persons shall be adequately guarded.

15.8.b. Guards installed on equipment to prevent accidental contact with moving parts shall:

15.8.b.1. Be of substantial construction;

15.8.b.2. Not have openings large enough to admit a person's hand;

15.8.b.3. Be firmly bolted or otherwise installed in a stationary position; and

15.8.b.4. Be of sufficient dimensions to exclude the possibility of bodily contact while in motion.

15.8.c. All floor boards shall be kept secured in place.

15.9. Operation of mobile equipment.

15.9.a. Mobile equipment operators shall have full control of the equipment while in motion and shall operate such mobile equipment safely.

15.9.b. The type of equipment and posted operating speeds shall be prudent and consistent with conditions of roadways, grades, clearance, visibility and traffic. 15. 9.c. All mobile equipment shall be completely stopped before a person gets on or off.

15.9.d. No person other than the operator shall be permitted to ride in or on equipment unless in the line of duty, and only then when adequate safe seating facilities are provided.

15.9.e. Cabs of mobile equipment shall be kept free of extraneous materials and adequately ventilated by mechanical means.

15.9.f. When necessary to protect the operator of the equipment, all rubber tired or crawler mounted self-propelled scrapers, front-end loaders, dozers, graders, and tractors that are used on quarries shall be provided with substantial falling object protective structures.

15.9.g. All rubber tired or crawler mounted self-propelled scrapers, front-end loaders, dozers, graders, and tractors, manufactured after January 1, 1969, shall be provided with roll over protective structures.

15.9.h. Equipment shall be operated only by persons trained in the use of and authorized to operate such equipment.

15.9.i. Operators of all equipment shall keep a reasonable safe distance from the edge of all vertical or abrupt excavations or fills.

15.10. Loads.

15.10.a. Equipment which is to be hauled shall be secured.

15.10.b. Any load extending more than four (4) feet beyond the rear of the vehicle body shall be marked clearly with a red flag.

15.10.c. Dump trucks shall be trimmed properly when they have been loaded higher than the confines of their cargo space.

15.10.d. No one shall be permitted to ride in or on equipment while it is being hauled. ### 15.11. Machinery.

15.11.a. All drive belts shall be adequately guarded if the whipping action from a broken belt could come into contact with a person.

15.11.b. Belt conveyors in locations where fire would create a hazard to personnel shall be provided with switches to stop the drive pulley automatically in the event of excessive slippage.

15.11.c. Walkways adjacent to conveyor belts not covered or equipped with protective railing shall be equipped with emergency stop switches or pull cords along the affected area.

15.12. Hand-held tools, power tools and safety devices.

15.12.a. Condition of tools. All tools, power tools and similar equipment shall be maintained in a safe condition.

15.12.b. Hand-held power tools shall be equipped with controls requiring constant hand or finger pressure to operate the tools or shall be equipped with a friction clutch or other equivalent safety device.

15.12.c. Adjustable, pipe, end and socket wrenches shall not be used when jaws are sprung to the point that slippage occurs.

15.12.d. Impact tools such as drift pins, wedges, and chisels shall be kept free of mushroomed heads.

15.12.e. The wooden handles of tools shall be kept tight and free of splinters or cracks and shall be kept tight in the tool.

15.12.f. Electric power operated tools shall be approved double-insulated or grounded type.

15.12.g. Only proper hoisting equipment shall be used for hoisting or lowering tools. The use of hoses or electric cords for such purpose is prohibited.

15.12.h. Pneumatic power tools shall be secured to the hose by some positive means to prevent the tools from becoming accidentally disconnected.

15.12.i. Safety clips or retainers shall be securely installed and maintained on pneumatic impact (percussion) tools.

15.12.j. The manufacturer's safe operating pressure for hoses, pipes, valves, filters, and other fittings shall not be exceeded.

15.12.k. All fuel powered tool engines shall cease operations while being refueled, serviced, or maintained.

15.12.1. When fuel powered tools are used in enclosed spaces, the applicable requirements for concentrations of toxic gases and use of personal protective equipment shall apply.

15.12.m. Only approved fuel containers shall be used, and such containers shall be safely stored.

15.12.n. All hand-held tools, power tools and safety devices shall be used in accordance with manufacturers' specifications.

15.13. Jacks.

15.13.a. The manufacturer's rated capacity shall be legibly marked on all lifting jacks and shall not be exceeded. All jacks shall be maintained and used in accordance with the manufacturers' specifications.

15.13.b. All lifting jacks shall have a positive stop to prevent over-travel.

15.13.c. Blocking. When it is necessary to provide a firm foundation, the base of the lifting jack shall be blocked or cribbed. Where there is a possibility of slippage of the metal cup or the jack, a wood block shall be placed between the cap and the load. Work shall not be performed under any machinery until the proper blocking is in place and, with the exception of a jack, tight. # 15.14. Stationary grinding machines, protective devices.

15.14.a. Mechanically operated grinding wheels shall be equipped with safety washers, substantial retaining hoods or approved eye shields. Approved face shields shall be provided and located at the grinding location and shall be worn by persons when using the machine. Safety hoods (guards or flanges) shall be mounted so as to maintain proper alignment with the wheel, and shall be of sufficient strength to retain fragments of the wheel in the case of accidental breakage. All abrasive wheels shall be ring-tested before mounting to insure they are free from cracks or defects, and shall fit freely on the spindle and not be forced on.

15.14.b. Adjustable tool rests shall be set as close as required to manufacturers' specifications.

15.14.c. Grinding wheels shall be operated according to the specification of the manufacturer. # 15.15. Tires and repairs.

15.15.a. A safety tire rack, cage, or equivalent protection shall be provided when inflating tires installed on split or rims equipped with locking rings or similar devices. Tires shall be deflated before repairs on them are started and means shall be provided to prevent wheel locking rims from creating a hazard during tire inflation. Different types and sizes of wheel rims in the same location shall be stored separately from each other.

15.15.b. Heat shall not be applied to lug bolts, rims or wheels while tires are inflated.

15.15.c. When work is being performed on models that are equipped with dual wheels, both tires must be deflated for heating lugs before repair work begins. Safe means shall be provided for removing rocks or other hazardous material caught between the dual tires.

15.15.d. No person shall be permitted in front of a tire being inflated either on or off equipment and persons engaged in inflating or deflating tires shall perform such work in an area isolated from other persons.

15.15.e. When fork lift trucks are used in mounting or transporting of tires, adequate means shall be taken to assure that tires are secured properly. No person shall be permitted to stand between the hub of a vehicle and fork lift truck when used to change a tire.

15.15.f. A clip-on-air chuck shall be provided at all tire airing stations. At least six (6) feet of air hose shall be provided between the valve stem and the inflation gauge.

15.15.g. All tires shall be maintained in a safe condition according to manufacturers' specifications. Any tire with a defect which could be a hazard to the safe operation of a vehicle or to other persons shall be replaced immediately. # 15.16. Operating equipment on extreme slopes.

15.16.a. Prior to any equipment operating on an extreme slope, a meeting shall be conducted with the quarry operator, all persons involved in working on the extreme slope and a representative of the Director to develop a plan as to how the equipment operators shall work on the extreme slope safely.

15.16.b. When cable winching is utilized as the safeguard for operating equipment on extreme slopes, the operator shall follow the manufacturer's specifications and limitations of the mobile equipment, wire ropes, and all attachments.

15.16.c. When cable winching, the following requirements must be met:

15.16.c.1. The equipment being used to assist a dozer, or other equipment working on slopes, shall be of proper size and strength to provide adequate anchorage. The equipment providing anchorage shall be positioned to provide maximum stability.

15.16.c.2. The winch line assembly shall be of proper size and strength and properly maintained to provide safety for all equipment.

15.16.c.3. Winch cables used by equipment working on slopes shall be of proper size according to manufacturers' specifications.

15.16.c.4. Winch cables shall be secured to the winch assembly drum according to the manufacturers' specifications.

15.16.c.5. A minimum of three (3) wraps of winch cable shall remain on the drum at all times.

15.16.c.6. The live-end connection device used to secure the two (2) pieces of equipment together shall be of a design that minimizes the possibility of accidental disconnection. The connection device shall be of the proper strength for the duties performed and maintained in safe condition according to manufacturer's specifications.

15.16.c.7. All winch cables shall be securely fastened to the live-end connection device by the proper number of wire-rope clamps or properly wedged according to the manufacturer's specifications. 15 16.c.8. All components of the winch line assembly shall be inspected by the equipment operator periodically during daily operations.

15.16.d. Constant communications either audible or visual shall be maintained between equipment operators while working on extreme slopes. No one shall work on an extreme slope alone. # §56-20-16. Installations.

16.1. Installations generally.

16.1.a. All quarry structures, enclosures, and other facilities shall be maintained in good condition.

16.1.b. In unusually dusty locations, electric motors, switches and controls shall be of dusttight construction or enclosed with reasonable dust-tight housings or enclosures.

16.1.c. Openings in installations through which persons or material may fall shall be protected by railings, barriers, covers or other protective devices.

16.1.d. Illumination sufficient to provide safe working conditions shall be provided in and on all structures, paths, walkways, switch panels, loading and dumping sites, working areas and parking areas.

16.1.e. Materials shall be stored and/or stacked in a manner to prevent stumbling or falling.

16.1.f. Good housekeeping shall be practiced in and around all plants. Such practices include cleanliness, orderly storage of materials, and the removal of possible sources of injury, such as stumbling hazards, protruding nails and broken glass.

16.1.g. Adequate ventilation shall be provided.

16.1.h. A person entering a bin, tank or other dangerous area shall wear a full body harness that is tethered to a lifeline. A person shall continuously tend the lifeline from outside the bin, tank or other dangerous area.

16.1.i. When entering such areas, a competent person will determine if the need for atmospheric monitoring is necessary. # 16.2. Machinery guards.

16.2.a. Gears, sprockets; chains, drive, head, tail and take-up pulleys; flywheels; couplings; shafts; saw blades; fan inlets; and similar exposed moving machine parts which may be contacted by persons, shall be guarded adequately.

16.2.b. Except when testing is necessary, machinery guards shall be secured in place while being operated.

16.2.c. Belt rollers shall not be cleaned while belts are in motion.

16.3. Ramps and dumping.

16.3.a. Both sides of any dumping ramp shall be provided with adequate berms or barriers.

16.3.b. Adequate berms or barriers shall be installed at all dumping points, excluding stockpiles.

16.3.c. Adequate protection, including but not limited to signage, barricades or warning devices, shall be provided at dumping locations where persons may be endangered by falling material.

Operator stations and workers shall be protected from hazards by distance, guarding, location, construction, etc.

16.3.d. Dust control measures shall be taken where dust significantly reduces visibility of equipment operators.

16.3.e. All power lines in dumping areas shall be maintained at least a minimum of twelve (12) feet above the largest piece of equipment used at such facility, including a dump truck in a raised position.

16.3.f. All dumping ramps shall be of sufficient width to insure safe operation of vehicles used thereon.

16.3.g. At no time shall any person be permitted to enter into any crusher, bin, screen or hopper unless the equipment has been tagged out, de-energized, and locked out with a key or other approved adequate safeguards approved by the Director. Workers shall not dislodge material from operating crushers, except with aggregate or rock breakers of an approved design.

16.3.h. No person shall be permitted to perform any work within the confines of the cargo space of a crusher, feeder, or rotary breaker unless such equipment has been de-energized and locked out.

16.3.i. Ramps and dumps shall be of solid construction and have ample width, clearance and head room, and be kept reasonably free of accumulations of material and spillage.

16.4. Repairs of machinery.

16.4.a. Machinery shall not be lubricated while in motion, except where safe remote lubricating devices are used. Machinery that must be shut down for repairs or lubrication shall be locked out and tagged out to prevent accidental starting, and stored energy will be discharged, etc. Machinery shall not be re-started until the persons lubricating or repairing it have removed the lock and tag and all personnel are clear of the machinery.

16.4.b. Where repairs are made, proper scaffolding and proper overhead protection shall be provided for workers when necessary.

16.4.c. Where overhead repair work is being performed at surface installations, adequate protection shall be provided for all persons working or passing below.

16.5. Stairs, platforms, etc.

16.5.a. Stairways, elevated platforms and runways shall be equipped with handrails.

16.5.b. Elevated platforms shall be provided with toe boards. They shall be kept clear of refuse and ice and maintained in good condition.

16.5.c. Vertical clearance above stair steps shall be a minimum of seven (7) feet or suitable warning signs or similar devices shall be provided to indicate an impaired clearance.

16.6. Drive belts, etc. 16.6 a. Drive belts shall not be shifted while in motion unless such machines are provided with mechanical shifters.

16.6.b. Belt dressing shall not be applied while in motion.

16.6.c. Belts, chains and ropes shall not be guided onto power-driven moving pulleys, sprockets, or drums with the hand except equipment especially designed for hand feeding.

16.7. Conveyors, crossovers and crossunders.

16.7.a. When the entire length of a conveyor is visible from the starting switch, the operator shall visually check to make certain that all persons are in the clear before starting the conveyor. When the entire length of the conveyor is not visible from the starting switch, a positive audible or visible warning system shall be installed and operated to warn persons when the conveyor will be started.

16.7.b. Crossovers and crossunders shall be provided where necessary to cross conveyors.

All crossovers and elevated crossunders shall be of substantial construction with rails and maintained in good condition. Moving conveyors shall be crossed only at designated crossover and crossunder points.

16.7.c. Pulleys of conveyors shall not be cleaned manually while the conveyor is in operation.

16.7.d. Guards, nets, or other suitable protection shall be provided where falling material from conveyor belts presents a risk of injury.

16.7.e. Where it is required to cross under a belt, guarding shall be installed to prohibit a person from making contact with a moving part. Guards shall not be required where the exposed moving parts are at least seven (7) feet away from walking or working surfaces. 16.7 .. f. Conveyors shall be locked out and tagged out before any work is performed within the confines of the belt. Conveyors shall not be re-started until locks and tags are removed.

16.8. Travelways.

16.8.a. Safe means of access shall be provided and maintained to all working places.

16.8.b. Travelways, platforms and other access to areas where persons are required to travel or work shall be kept free of all extraneous material and other stumbling or slipping hazards.

16.8.c. Inclined travelways shall be constructed of nonskid material or equipped with cleats.

16.8.d. Regularly used travelways shall be salted, sanded or cleared of snow and ice as soon as practical.

16.9. Ladders.

16.9.a. All ladders shall be secured against movement.

16.9.b. Ladders shall be of substantial construction and maintained in good condition.

16.9.c. Wooden ladders shall not be painted.

16.9.d. Fixed ladders shall not incline backward at any point unless equipped with backguards.

16.9.e. Fixed ladders shall be anchored securely and installed with at least three (3) inches of toe clearance. Permanent ladders more than ten (10) feet in height shall be provided with backguards.

16.9.f. Side rails of fixed ladders shall project at least three (3) feet above landings or substantial handholds shall be provided above the landing.

16.9.g. No person shall be permitted to work off of the top step of any ladder.

16.9.h. Metal ladders shall not be used with electrical work or where there is danger of the ladder coming into contact with power lines or an electrical conductor.

16.9.i. The maximum length of a step ladder shall be twenty (20) feet and an extension ladder sixty (60) feet.

16.10. Hoisting.

16.10.a. All persons shall remain a safe distance from any supplies or materials while being raised, lowered or in transit by a forklift, crane, or other equipment: Provided, That whenever it is necessary to have persons other than the equipment operator in the immediate vicinity of any such supplies, the loads shall be securely fastened by a chain or other device to the equipment handling the load in order to prevent the load from slipping or falling off the equipment.

16.10.b. Hitches and slings used to hoist materials shall be suitable for handling the type of material being hoisted.

16.10.c. Persons shall stay clear of hoisted loads.

16.10.d. Tag lines shall be attached to hoisted materials that require steadying or guidance.

A hoist shall not lift loads greater than the rated capacity of the hoist being used.

16.11. Drawoff tunnels.

16.11.a. After the effective date of this article, all tunnels constructed shall include at least two (2) safe travelways to egress the tunnel. The safe travelways shall be at least thirty (30) inches in diameter or equivalent.

16.11.b. Tunnels located below stockpiles and storage silos shall be adequately ventilated by natural or mechanical means.

16.11.c. Communications or some other means of signaling shall be provided near the entrance to the escapeways in drawoff tunnels.

16.11.d. Tunnels shall be inspected on a regular basis for structural integrity. Tunnels found not structurally sound shall be removed from service until such time as the structural integrity has been restored.

16.12. Ventilation and methane where coal is stored and used.

16.12.a. Tests for methane in structures, enclosures, or other facilities where coal is stored shall be conducted with an approved methane detector or device at least once during each operating shift.

16.12.b. Methane content in surface structures. If, at any time, the air in any enclosure contains one percent (1.0%) or more of methane, changes or adjustments in the ventilation of such installation shall be made at once so that the air shall contain less than one percent (1.0%) methane.

16.12.c. Dust accumulation in surface installations. Coal dust on surface structures, enclosures, or other facilities shall not be permitted to exist or accumulate in dangerous quantities. ## 16.13. Railroad equipment.

16.13.a. Railroad cars shall be maintained under control at all times. Cars shall be dropped at a safe rate of speed and in such a manner that will insure that the car dropper maintains a safe position while working and traveling around the cars. The car dropper shall control the trip from one location and not drop more cars than can be controlled from such location. A car dropper shall not drop more than three (3) cars at one time with one (1) brake.

16.13.b. Railroad cars shall not be coupled or uncoupled manually from the inside of curves unless the railroad and cars are so designed to eliminate any hazard from coupling or uncoupling cars from inside curves.

16.13.c. No person shall ride the drawhead or coupler of a railroad car. No person other than the car dropper shall ride cars. No car dropper shall ride the end of a car about to be coupled with another car if other brakes are available.

16.13.d. Employees handling railroad cars shall have access to and use an approved distinct audible signaling device to give warning when cars are in motion. A car dropper shall get on or off a moving car only in case of an emergency.

16.13.e. Rail cars shall not be left on side tracks unless ample clearance is provided for traffic on adjacent tracks. Parked rail cars, unless held effectively by brakes, shall be blocked securely.

16.13.f. Railroad cars shall be trimmed properly when they have been loaded higher than the confines of their cargo space.

16.13.g. A minimum of thirty (30) inches continuous clearance from the furthest projection of moving railroad equipment shall be provided on at least one (1) side of the tracks; all places where it is not possible to provide thirty (30) inch clearance shall be marked conspicuously.

16.13.h. Roadbeds, rails, joints, switches, frogs, and other elements on railroads shall be designed, installed and maintained in a safe manner consistent with the speed and type of haulage.

16.13.i. Positive-acting stopblocks, derail devices, track skates, or other adequate means shall be installed where ever necessary to protect persons from runaway railroad equipment.

16.13.j. Switch throws shall be installed so as to provide adequate clearance for switchmen.

16.13.k. Where necessary, bumper blocks or the equivalent shall be provided at all track deadends.

16.13.1. Cars shall be inspected for broken steps, platforms and brake wheels and for defective brakes before dropping.

16.13.m. Equipment operating speeds shall be consistent with conditions of roadways, grades, clearance, visibility, traffic and the type of equipment used.

16.13.n. Fall protection shall be worn and properly attached by all car droppers handling railroad cars. # 16.14. Railroad track construction and maintenance.

16.14.a. All parts of the track haulage road under the ownership or control of the operator shall be strictly constructed and maintained. Rails shall be secured at all points by means of plates or welds.

When plates are used, plates conforming with the weight of the rail shall be installed and broken plates shall be replaced immediately. Appropriate bolts shall be inserted and maintained in all bolt holes. The appropriate number of bolts conforming with the appropriate rail plate for the weight of the rail shall be inserted, tightly secured, and maintained.

16.14.b. All points shall be installed and maintained so as to prevent bad connections.

Varying weights of rail shall not be joined without proper adapters. Tracks shall be blocked and leveled and maintained so as to prevent high and low joints.

16.14.c. Tracks shall be gauged so as to conform with the track mounted equipment.

Curves shall not be constructed so sharp as to put significant pressure on the trucks of the track-mounted equipment.

16.14.d. Severely worn or damaged rails and ties shall be replaced immediately. ## §56-20-17. Facilities Using Coal Storage Bins; Recovery Tunnels; Coal Storage Piles.

17.1. Coal storage bins hereafter constructed with vertical sides fifty (50) feet or over in height shall be provided with ventilators or louvers or both to provide adequate ventilation. Where roofs are constructed over coal storage bins, adequate ventilation shall be provided by stacks, ventilators, louvers or mechanical means.

17.2. Where cutting or welding is performed at any location where coal is stored, means of prompt extinguishment of any fire accidentally started shall be provided, and the area where cutting or welding is performed shall be adequately watered down and/or rock dusted.

17.3. Extreme caution shall be exercised by all employees required to work at or near coal storage piles during coal recovery operations to avoid injury by coal slides or by being in or drawn into a chute. # §56-20-18. Fire Protection. ## 18.1. Fire extinguishers.

18.1.a. A portable fire extinguisher containing a nominal weight of at least five (5) pounds shall be kept on each piece of mobile equipment. This requirement is also applicable to mobile equipment equipped with fire suppression systems.

18.1.b. All portable fire extinguishers on equipment shall be properly secured.

18.2. Flammable liquids.

18.2.a. Flammable liquids, such as oil, grease, gasoline and such other like materials, shall be stored in buildings, compartments or closed containers used for this purpose only.

18.2.b. The storage of gasoline, oil, or other fuels, other than that which is in the fuel tank, shall be prohibited on any piece of equipment except for diesel equipment using gasoline starting engines; in this instance, one (1) extra gallon of gasoline in an approved safety can (flash arresting screen with selfclosing lid) may be stored on the equipment securely fastened in a location on the equipment out of the way of moving objects.

18.2.c. Flammable liquids shall not be used to clean machinery.

18.2.d. Combustible materials, grease, lubricants, paints, flammable liquids, shall not be permitted to accumulate where fire hazards exist.

18.2.e. Waste or rags containing flammable or combustible liquids that could create a fire hazard shall be placed in the following containers until disposed of properly:

18.2.e.1. Surface-covered metal containers or equivalent containers with flame containment characteristics.

18.2.e.2. Underground-covered metal containers.

18.2.f. Solvents shall not be used near an open flame or other ignition source, near any source of heat, or in an atmosphere that can elevate the temperature of the solvent above the flash point.

18.2.g. Small quantities of flammable liquids drawn from storage shall be kept in safety cans labeled to indicate the contents.

18.3. Fueling and storage.

18.3.a. Internal combustion engines, except diesels, shall be shut off and stopped before being fueled.

18.3.b. Areas surrounding flammable liquid storage tanks, electric substations and transformers shall be kept free from grass, dry weeds, underbrush, and other combustible materials, for at least twenty-five (25) feet in all directions.

18.3.c. Fuel lines on fuel storage tanks shall be equipped with valves to cut off fuel at the source and shall be located and maintained to minimize fire hazard.

18.3.d. Smoking and use of open lights are prohibited in all places in which flammable materials are stored and in other places where there is a fire hazard.

18.4. Maintenance of firefighting equipment. Firefighting equipment shall be continuously maintained in a usable and operative condition. Fire extinguishers shall be examined at least once every month. The date of such examination shall be recorded on a permanent tag attached to the extinguisher.

18.5. Warnings. Warning signs prohibiting smoking and open flames shall be posted where they can be readily observed in areas or locations where fire or explosion hazards exist.

18.6. Drills. Fire drills with various types of available fire-fighting equipment shall be held for employees at least once every six (6) months. A record of such fire drills shall be recorded and kept for a period of one (1) year.

18.7. Surface fan installations and mine openings.

18.7.a. On the surface, no more than one day's supply of combustible materials shall be stored within one hundred (100) feet of mine openings or within one hundred (100) feet of fan installations used for underground ventilation.

18.7.b. The one-day supply shall be kept at least twenty-five (25) feet away from any mine opening except during transit into the mine.

18.7.c. Dry vegetation shall not be permitted within twenty-five (25) feet of mine openings.

18.8. Use of fire underground. Fires shall not be lit underground, except for open-flame torches.

Torches shall be attended at all times while lit.

18.9. Underground belt conveyors. Fire protection shall be provided at the head, tail, drive, and takeup pulleys of underground belt conveyors. Provisions shall be made for extinguishing fires along the beltline. Fire protection shall be of a type, size, and quantity that can extinguish fires of any class in their early stages which could occur as a result of the fire hazards present.

18.10. Firefighting, evacuation, and rescue procedures.

18.10.a. Firefighting procedures/alarms/drills. # 18.10.a.1. Underground alarm systems.

18.10.a.1.A. Fire alarm systems capable of promptly warning every person underground, except as provided in subparagraph 18.10.a.1.B, shall be provided and maintained in operating condition.

18.10.a.1.B. If persons are assigned to work areas beyond the warning capabilities of the system, provisions shall be made to alert them in a manner to provide for their safe evacuation in the event of a fire. # 18.10.a.2. Underground evacuation drills.

18.10.a.2.A. At least once every six (6) months, mine evacuation drills shall be held to assess the ability of all persons underground to reach the surface or other designated points of safety within the time limits of the self-rescue devices that would be used during an actual emergency.

18.10.a.2.A.1. The evacuation drills shall: 18.10.a.2.A.1.(a). Beheld for each shift at some time other than a shift change and involve all persons underground; 18.10.a.2.A.1.(b). Involve activation of the fire alarm system (if installed); and 18.10.a.2.A.1(c). Include evacuation of all persons from their work areas to the surface or to designated central evacuation points.

18.10.b. At the completion of each drill, the mine operator shall record the date and the time the evacuation began and ended. Records shall be retained for at least one (1) year after each drill and made available to an authorized representative of the Director.

18.11. Underground rescue and firefighting operations. Following evacuation of a mine in a fire emergency, only persons wearing and trained in the use of mine rescue apparatus shall participate in rescue and firefighting operations in advance of the fresh air base.

18.12. Underground evacuation instruction.

18.12.a. At least once every twelve (12) months, all persons who work underground shall be instructed in the escape and evacuation plans and procedures and fire warning signals in effect at the mine.

18.12.b. Whenever a change is made in escape and evacuation plans and procedures for any area of the mine, all persons affected shall be instructed in the new plans or procedures.

18.12.c. Whenever persons are assigned to work in areas other than their regularly assigned areas, they shall be instructed about the escape way for that area at the time of such assignment. However, persons who normally work in more than one (1) area of the mine shall be instructed at least once every twelve (12) months about the location of escape ways for all areas of the mine in which they normally work or travel.

18.12.d. At the completion of any instruction given under this rule, the mine operator shall record the date that the instruction was given. Records shall be retained for at least one (1) year and made available to an authorized representative of the Director. ## 18.13. Battery-charging stations.

18.13.a. Battery-charging stations shall be ventilated with a sufficient volume of air to prevent the accumulation of hydrogen gas.

18.13.b. Smoking, use of open flames, or other activities that could create an ignition source shall be prohibited at the battery charging station.

18.13.c. Readily visible signs prohibiting smoking or open flames shall be posted at batterycharging stations.

18.14. Conveyor belt slippage.

18.14.a. Surface belt conveyors within confined areas where evacuation would be restricted in the event of a fire resulting from belt-slippage shall be equipped with a detection system capable of automatically stopping the drive pulley.

18.14.b. Underground belt conveyors shall be equipped with a detection system capable of automatically stopping the drive pulley if slippage could cause ignition of the belt.

18.14.c. A person shall attend the belt at the drive pulley when it is necessary to operate the conveyor while temporarily bypassing the automatic function.

18.15. Mine opening vicinity.

18.15.a. Surface buildings or other similar structures within one hundred (100) feet of mine openings used for intake air or within one hundred (100) feet of mine openings that are designated escape ways in exhaust air shall be:

18.15.a.1. Constructed of noncombustible materials; or

18.15.a.2. Constructed to meet a fire resistance rating of no less than one (1) hour; or

18.15.a.3. Provided with an automatic fire suppression system; or

18.15.a.4. Covered on all combustible interior and exterior structural surfaces with noncombustible material or limited combustible material, such as five-eighth (5/8) inch, type "X", gypsum ☒ wallboard.

18.16. Stationary diesel equipment underground. Stationary diesel equipment underground shall be:

18.16.a. Supported on a noncombustible base; and

18.16.b. Provided with a thermal sensor that automatically stops the engine if overheating occurs.

18.17. Preparation of pipelines or containers. Before welding, cutting, or applying heat with an open flame to pipelines or containers that have contained flammable or combustible liquids, flammable gases, or explosive solids, the pipelines or containers shall be:

18.17.a. Drained, ventilated, and thoroughly cleaned of any residue;

18.17.b. Vented to prevent pressure build-up during the application of heat; and

18.17.c. Filled with an inert gas or water, where compatible; or

18.17.d. Determined to be free of flammable gases by a flammable gas detection device prior to and at frequent intervals during the application of heat. # 18.18. Underground shops.

18.18.a. To confine or prevent the spread of toxic gases from a fire originating in an underground shop where maintenance work is routinely done on mobile equipment, one of the following measures shall be taken: use of control doors or bulkheads, routing of the mine shop air directly to an exhaust system, reversal of mechanical ventilation, or use of an automatic fire suppression system in conjunction with an alternate escape route. The alternative used shall at all times provide at least the same degree of safety as control doors or bulkheads.

18.18.a.1. Control doors or bulkheads. If used as an alternative, control doors or bulkheads shall meet the following requirements:

18.18.a.1.A. Each control door or bulkhead shall be constructed to serve as a barrier to fire, the effects of fire, and air leakage at each opening to the shop.

18.18.a.1.B. Each control door shall be:

18.18.a.1.B.1. Constructed so that, once closed, it will not reopen as a result of a differential in air pressure;

18.18.a.1.B.2. Constructed so that it can be opened from either side by one person or be provided with a personnel door that can be opened from either side;

18.18.a.1.B.3. Clear of obstructions; and

18.18.a.1.B.4. Provided with a means of remote or automatic closure unless a person specifically designated to close the door in the event of a fire can reach the door within three (3) minutes.

18.18.a.1.C. If located twenty (20) feet or more from exposed timber or other combustible material, the control doors or bulkheads shall provide protection at least equivalent to a door constructed of no less than one-quarter (1/4) inch of plate steel with channel or angle-iron reinforcement to minimize warpage. The framework assembly of the door and the surrounding bulkhead, if any, shall be at least equivalent to the door in fire and air-leakage resistance and in physical strength.

18.18.a.1.D. If located less than twenty (20) feet from exposed timber or other combustibles, the control door or bulkhead shall provide protection at least equivalent to a door constructed of two (2) layers of wood, each a minimum of three-quarters (3/4) inch in thickness. The woodgrain of one (1) layer shall be perpendicular to the wood-grain of the other layer. The wood construction shall be covered on all sides and edges with no less than 24-gauge sheet steel. The framework assembly of the door and the surrounding bulkhead, if any, shall be at least equivalent to the door in fire and air-leakage resistance and in physical strength. Roll-down steel doors with a fire-resistance rating of one and one-half (1-1/2) hours or greater, but without an insulation core, are acceptable: Provided, That an automatic sprinkler or deluge system is installed that provides even coverage of the door on both sides.

18.18.b.1. Routing air to exhaust system. If used as an alternative, routing the mine shop exhaust air directly to an exhaust system shall be done so that no person would be exposed to toxic gases in the event of a shop fire.

18.18.c.1. Mechanical ventilation reversal. If used as an alternative, reversal of mechanical ventilation shall:

18.18.c.1.A. Be accomplished by a main fan. If the main fan is located underground:

18.18.c.1.A.1. The cable or conductors supplying power to the fan shall be routed through areas free of fire hazards; or

18.18.c.1.A.2. The main fan shall be equipped with a second, independent power cable or set of conductors from the surface. The power cable or conductors shall be located so that an underground fire disrupting power in one (1) cable or set of conductors will not affect the other; or

18.18.c.1.A.3. A second fan capable of accomplishing ventilation reversal shall be available for use in the event of failure of the main fan.

18.18.c.1.B. Provide rapid air reversal that allows persons underground time to exit in fresh air by the second escapeway or find a place of refuge; and

18.18.c.1.C. Be done according to predetermined conditions and procedures.

18.18.d.1. Automatic fire suppression system and escape route. If used as an alternative, the automatic fire suppression system and alternate escape route shall meet the following requirements:

18.18.d.1.A. The suppression system shall be:

18.18.d.1.A.1. Located in the shop area; hazards involved; and

18.18.d.1.A.2. The appropriate size and type for the particular fire maintained.

18.18.d.1.A.3. Inspected at weekly intervals and properly

18.18.d.1.B. The escape route shall bypass the shop area so that the route will not be affected by a fire in the shop area.

18.19. Installations.

18.19.a. Fire protection.

18.19.a.1. Where cutting or welding is performed at any location, means of prompt extinguishment of any fire accidentally started shall be provided.

18.19.a.2. Adequate fire-fighting equipment, required by the West Virginia Office of Miners' Health, Safety and Training, shall be provided where fire hazard exists. At least two (2) exits shall be provided for every enclosed floor of plants constructed after the effective date of these rules.

18.19.a.3. Signs warning against smoking and open flames shall be posted so they can be readily seen in areas or places where fire or explosion hazards exist.

18.19.a.4. Smoking or open flame in or about surface structures shall be restricted to locations where it will not cause fire or an explosion.

18.19.a.5. In structures where compressed gases are piped through permanently installed fixtures, such fixtures shall be examined daily for leaks and damage. If leaks or damage to the fixtures are discovered, repairs shall be made immediately.

18.19.a.6. Open flame in or about surface structures shall be restricted to locations where it will not cause fire or an explosion.

W. Va. Code R. § 56-20-19 Protective Equipment and Clothing

19.1. Eye and face protection.

19.1.a. Welders and helpers shall use adequate shields or goggles to protect their eyes and face.

19.1.b. All employees shall have approved goggles, shields or safety glasses and use the same where there is a hazard from flying particles or other eye and face hazards.

19.1.c. All eye and face protection in this section shall meet the standards of the American Standards Institute (ANSI) Z87.1-1968.

19.1.d. Suitable eye protection and cleaning materials shall be made available at each site.

19.2. Clothing.

19.2.a. Employees engaged in haulage operations and all other persons employed around moving equipment shall wear snug-fitting clothing.

19.2.b. Protective gloves shall be worn when material which may injure hands is handled.

Gloves with gauntleted cuffs shall not be worn around moving equipment.

19.3. Hard hats and safety toed shoes.

19.3.a. Hard hats and safety toed shoes shall be worn by all persons while in or around a quarry.

19.3.b. All employees shall be required to wear hard hats, except in the following instances:

19.3.b.1. When operating mobile equipment with an enclosed cab, FOPS or ROPS.

19.3.b.2. When inside an enclosed structure, unless there is a possibility of head injury.

19.3.c. The hard hats required hereunder shall meet the specifications for such helmets as prescribed by ANSI Z89.1-1969.

19.3.d. Within ninety (90) days of the effective date of this rule, all hard hats shall be equipped with a minimum of twelve (12) square inches of reflective material.

19.4. Working around water.

19.4.a. A United States Coast Guard approved life jacket shall be worn where there is a danger of drowning.

19.4.b. A ring buoy with ninety (90) feet of rope attached shall be available where there is a danger of drowning.

19.5. Fall protection and fall arrest.

19.5.a. Fall protection or arrest systems shall be used when there is a danger of falling from a height of six (6) feet or greater.

19.5.a.1. Personal fall protection.

19.5.a.1.A. Personal fall protection shall consist of a full body harness; a safety belt is not permitted.

19.5.a.1.B. A shock absorbing lanyard, personal fall limiter or self-retracting lanyard shall be used.

19.5.a.1.C. Anchorage points shall be capable of withstanding five thousand (5000) pounds of force per worker.

19.5.a.1.D. Anchorage points shall be utilized as to limit the fall distance to less than six (6) feet or contact with a lower level.

19.5.a.1.E. All personal fall arrest equipment shall be utilized, maintained and inspected as per the manufacturer's specifications.

19.5.b. All other fall protection. Other fall protection and arrest systems may be utilized with approval of the Director.

19.6. Hearing protection. Hearing protection shall be provided by the operator.

19.7. Respiratory equipment; control of dust.

19.7.a. Miners exposed to hazardous gas, dust, fume, and mist inhalation shall wear permissible respiratory equipment.

19.7.b. Dust shall be controlled by the use of permissible dust collectors or other approved methods. ## §56-20-20. First Aid Requirements - Quarries. ### 20.1. First aid stations and equipment.

20.1.a. Each operator of a quarry shall maintain a supply of first aid equipment which shall be available to workers at all times. First aid equipment shall be stored at a central location convenient for quick response to emergencies. Advanced first aid-training will consist of hands-on training and demonstration in the use, care, and maintenance of the first aid equipment stored at the quarry.

20.1.b. First aid equipment shall contain the following:

20.1.b.1. One (1) stretcher;

20.1.b.2. One (1) broken-back board, or approved combination stretcher;

20.1.b.3. Twenty-four (24) triangular bandages;

20.1.b.4. Eight (8) four-inch (4") bandage compresses;

20.1.b.5. Sixteen (16) two-inch (2") bandage compresses;

20.1.b.6. Twelve (12) one-inch (1") adhesive compresses;

20.1.b.7. Two (2) approved blankets;

20.1.b.8. Sterile sheets, disposable for burns;

20.1.b.9. Two (2) tourniquets;

20.1.b.10. Two (2) inflatable plastic leg splints;

20.1.b.11. Two (2) inflatable plastic arm splints;

20.1.b.12. Two (2) cold packs;

20.1.b.13. One (1) sterile water (1,000 ml);

20.1.b.14. Automatic External Defibrillator (AED);

20.1.b.15. Two (2) mask/face shields or masks and goggles combination meeting blood borne pathogen requirements;

20.1.b.16. Six (6) pairs of examination gloves;

20.1.b.17. Two (2) barrier devices with one-way valve for performing artificial ventilation and/or cardiopulmonary resuscitation (AV/CPR);

20.1.b.18. One (1) first aid book or manual that reflects the current recommended policies and procedures for dealing with emergencies which require first aid.

20.2. Proper storage of first aid supplies. All first aid supplies required to be maintained shall be stored in suitable sanitary, dust-tight, moisture proof containers. First aid supplies shall be accessible to the workers.

20.3. Emergency arrangements.

20.3.a. Each operator shall maintain a list that contains emergency telephone numbers along with the addresses of the local emergency services and any hospital that may provide service to the quarry.

20.3.b. Each operator shall have prior arrangements made with an ambulance service, or other emergency transportation facilities, for injured persons to be transported from the work site to a licensed physician, medical service, medical clinic, or hospital while people are actually employed at the operation.

20.3.c. Mine rescue teams for underground quarries. After the effective date of this rule, underground quarry operations within the quarry industry shall conform to 30 C.F.R. Part 49 or Title 48 Series 4 of the West Virginia Mining Laws, Rules and Regulations. # 20.4. Emergency communications.

20.4.a. Each operator shall provide two-way communication at all times miners are present between all work sites at the quarry and an emergency communication center which may be at the quarry office or elsewhere at the quarry.

20.4.b. Each operator shall establish and maintain a direct two-way communication system from such emergency communication center at the quarry to the nearest point of medical assistance for use in an emergency. Except as hereinafter provided, such emergency communication system shall be by telephone. If telephone communication from the emergency communication center to the nearest point of medical assistance is not possible at any one quarry, the Director may allow by permit such communication by radio transmission to any emergency assistance facility (e.g., state police, sheriff, local hospital) which has available the means of communication with the person or persons providing the requisite emergency medical assistance or transportation. # §56-20-21. First Aid Training.

21.1. At least seventy-five percent (75%) of employees per shift shall receive advanced first aid training. This training will be administered by an organization or individual recognized by the Director. This training shall include, but not be limited to: patient assessment, artificial respiration, CPR, control bleeding, and treat shock, wounds, burns and musculo-skeletal injuries. Existing employees will be trained within one (1) year of the effective date of this rule and retrained as required by the organization or individual that is conducting the training. The employee shall be paid regular wages, or overtime pay if applicable, for all periods of first aid training.

21.2. If a licensed Emergency Medical Technician (EMT) or equivalent (such as a paramedic or physician's assistant) is employed, then the EMT shall be recognized as meeting the requirements of subsection 21.1 and no other employee on that shift will be required to receive advanced first aid training.

If more than seventy (70) employees are employed per shift, then the requirements of subsection 20.1 will be enforced unless an additional EMT is added. When the EMT option is utilized by the operator, EMT qualifications and supplies will be accepted as currently recommended by the Regional Education Service Agencies (RESA). ## §56-20-22. Training.

22.1. Training will be provided in accordance with 30 C.F.R. Part 46 to include new miner training, newly hired experienced miner training, task training and annual refresher training. Training will be documented on a MSHA 5000-23 form or equivalent. This form shall be available to representatives of the Director upon request.

22.2. Job assignments to any miner. When a job assignment is given to any miner that he/she has not performed in the recent past, such inexperienced person, in the particular job assignment, shall be instructed in the hazards incident thereto and the law and rules relevant thereto prior to performing any duties in such new job assignment. When such job assignment includes the operation of equipment, the instruction shall include a supervised dry run. Instructions shall be given by a person(s) competent in the operation of the equipment as well as the hazards associated with quarry mining and shall include the proper use, function, testing, and maintenance of all safety features of the equipment. When the job assignment is related to a plan in effect at the quarry, the relevant portions of the plan shall be reviewed. A record shall be kept of such instruction and made available to a representative of the Director upon request. # §56-20-23. Quarry Map.

23.1. The operator shall maintain an updated quarry map and provide a copy to the West Virginia Office of Miners' Health, Safety and Training on or before the first day of March of each year. The map shall be an accurate and up-to-date map of the quarry, on a scale of not less than one hundred (100) nor more than five hundred (500) feet to the inch, at or near the quarry, in an area chosen by the operator, with a duplicate copy on file at a separate and distinct location, to minimize the danger of destruction by fire or other hazard. The map shall show:

23.1.a. Name and address of the quarry;

23.1.b. The property or boundary lines of the active areas of the quarry;

23.1.c. Contour lines passing through whole number elevations of the mineral being quarried. The spacing of such lines shall not exceed twenty-five (25) foot elevation levels, except that a broader spacing of contour lines may be approved by an authorized representative of the Director for steeply pitching minerals. Contour lines may be placed on overlays or tracings attached to quarry maps.

23.1.d. The general elevation of the mineral being mined and the general elevation of the surface;

23.1.e. Either producing or abandoned oil and gas wells and lines located on the quarry property;

23.1.f. The location and elevation of any body of water dammed or held back in any portion of the quarry: Provided, however, such bodies of water may be shown on overlays or tracings attached to the quarry maps;

23.1.g. All prospect drill holes that penetrate the mineral being mined on the quarry property;

23.1.h. All worked out and abandoned areas;

23.1.i. The location of railroad tracks and public highways leading to the quarry and quarry buildings of a permanent nature with identifying names shown;

23.1.j. Underground quarry workings underlying and within one thousand (1,000) feet of the active areas of the quarry;

23.1.k. The location and description of at least two (2) permanent base line points, and the location and description of at least two (2) permanent elevation bench marks used in connection with establishing or referencing quarry elevation surveys; and

23.1.1. The scale of the map.

23.2. Certification of quarry maps. Quarry maps shall be made or certified by an engineer or surveyor registered in the State of West Virginia.

23.3. Availability of quarry map.

23.3.a. The quarry map maintained in accordance with the provisions of Section 3, Article 26, Chapter 56 of the West Virginia Code shall be available for inspection by an authorized representative of the Director.

23.3.b. Surface quarries shall provide a copy of the annual map submitted to the West Virginia Department of Environmental Protection to the West Virginia Office of Miners' Health, Safety and Training. # §56-20-24. Air Quality.

24.1. Persons whose duties require them to use air quality testing devices shall be trained by the operator to assure their competence and a record that such training was given shall be kept on file by the operator for a period of one (1) year.

24.2. Each operator shall provide for the proper maintenance and care of the approved testing device(s) by a person trained in such maintenance, and before each shift, care shall be taken to insure that such device(s) are maintained according to manufacturers' recommendations. Air quality testing devices shall be calibrated according to manufacturers' recommendations and a record kept and made available to interested persons for a period of one (1) year.

24.3. Air quality.

24.3.a. Exposure monitoring. Dust, gas, mist, and fume surveys shall be conducted as frequently as necessary to determine the adequacy of control measures.

24.3.b. Oxygen deficiency. Air in all active workings shall contain at least 19.5 volume percent oxygen. # §56-20-25. Diesel Particulate Matter. ## 25.1. Limits on exposure.

25.1.a. A miner's personal exposure to diesel particulate matter (DPM) in an underground mine must not exceed an average eight-hour equivalent full shift airborne concentration of 160 micrograms of total carbon per cubic meter of air (160TCug/m3).

25.1.a.1. If a mine requires additional time to come into compliance with the final DPM limit established in the rules due to technological or economic constraints, the operator of the mine may file an application with the Director for a special extension.

25.1.a.2. The mine operator must certify on the application that the operator has posted one (1) copy of the application at the mine site for at least thirty (30) days prior to the date of application and has provided another copy to the authorized representative of the miners.

25.1.a.3. No approval of a special extension shall exceed a period of one (1) year from the date of approval. Mine operators may file for additional special extensions provided each extension does not exceed a period of one (1) year. An application must include the following information:

25.1.a.3.A. Documentation supporting that controls are technologically or economically infeasible at this time to reduce the miner's exposure to the final DPM limit;

25.1.a.3.B. The most recent DPM monitoring results; and

25.1.a.3.C. The actions the operator will take during the extension to minimize exposure of miners to DPM.

25.1.a.4. A mine operator must comply with the terms of any approved application for a special extension, post a copy of the approved application for a special extension at the mine site for the duration of the special extension period and provide another copy to the authorized representative of the miners.

25.1.a.5. The mine operator must install, use, and maintain feasible engineering and administrative controls to reduce a miner's exposure to or below the DPM limit established in this section.

When controls do not reduce a miner's DPM exposure to the limit, controls are infeasible, or controls do not produce significant reductions in DPM exposures, controls must be used to reduce the miner's exposure to as low a level as feasible and must be supplemented with respiratory protection.

25.1.a.5.A. Air purifying respirators must be equipped with the following: particulate air (HEPA) filter;

25.1.a.5.A.1. Filters certified by NIOSH as a high efficiency

25.1.a.5.A.2. Filters certified by as 99.97% efficient; or

25.1.a.5.A.3. Filters certified by NIOSH for DPM.

25.1.a.5.B. Non-powered, negative-pressure, air purifying, particulate-filter respirators shall use an R- or P-series filter or any filter certified by NIOSH for DPM. An R-series filter shall not be used for longer than one (1) work shift.

25.1.a.6. Rotation of miners shall not be considered an acceptable administrative control used for compliance with the DPM standard.

25.1.a.7. The mine operator must provide a confidential medical evaluation by a physician or other licensed health care professional (PLHCP), at no cost to the miner, to determine the miner's ability to use a respirator before the miner is required to be fit tested or to use a respirator at the mine.

If the PLHCP determines that the miner cannot wear a negative pressure respirator, the mine operator must make certain that the PLHCP evaluates the miner's ability to wear a powered air purifying respirator (PAPR).

25.1.a.7.A. The mine operator must provide the miner with an opportunity to discuss his/her evaluation results with the PLHCP before the PLHCP submits the written determination to the mine operator regarding the miner's ability to wear a respirator. If the miner disagrees with the evaluation results of the PLHCP, the miner may submit within thirty (30) days additional evidence of his/her medical condition to the PLHCP.

25.1.a.7.B. The mine operator must obtain a written determination from the PLHCP regarding the miner's ability to wear a respirator, and the mine operator must assure that the PLHCP provides a copy of the determination to the miner.

25.1.a.7.C. The miner must be reevaluated when the mine operator has reason to believe that conditions have changed which could adversely affect the miner's ability to wear the respirator.

25.1.a.7.D. Upon written notification that the PLHCP has determined that the miner is unable to wear a respirator, including a PAPR, the miner must be transferred to work in an existing position in an area of the same mine where respiratory protection is not required. The miner must be transferred within thirty (30) days of the final determination by the PLHCP.

25.1.a.7.D.1. The miner must continue to receive compensation at no less than the regular rate of pay in the classification held by that miner immediately prior to the transfer.

25.1.a.7.D.2. Increases in wages of the transferred miner must be based upon the new work classification.

25.1.a.7.D.3. The mine operator must maintain a record of the identity of the PLHCP and the most recent written determination of each miner's ability to wear a respirator for the duration of the miner's employment plus six (6) months.

25.2. Test for compliance.

25.2.a. The operator will make records showing compliance with MSHA regulations in regard to this section available to the Director or authorized representative.

25.2.a.1. Diesel fuel.

25.2.a.1.A. Diesel fuel used to power equipment in underground areas must not have a sulfur content greater than 0.05 percent. The operator must retain purchase records that demonstrate compliance with this requirement for one (1) year after the date of purchase.

25.2.a.1.B. The operator must only use fuel additives registered by the United States Environmental Protection Agency in diesel powered equipment operated in underground areas.

25.2.b.1. Maintenance.

25.2.b.1.A. Any diesel powered equipment operated at any time in underground areas must meet the following maintenance standards:

25.2.b.1.A.1. The operator must maintain any approved engine in approved condition;

25.2.b.1.A.2. The operator must maintain the emission related components of any non-approved engine to manufacturer specifications; and

25.2.b.1.A.3. The operator must maintain any emission or particulate control device installed on the equipment in effective operating condition.

25.2.b.1.B. A mine operator must authorize each miner operating dieselpowered equipment underground to affix a visible and dated tag to the equipment when the miner notes evidence that the equipment may require maintenance in order to comply with the maintenance standards.

The term "evidence" means visible smoke or odor that is unusual for that piece of equipment under normal operating procedures or obvious or visible defects in the exhaust emissions control system or in the engine affecting emissions.

25.2.b.1.C. A mine operator must ensure that any equipment tagged pursuant to this section is promptly examined by a person authorized to maintain diesel equipment, and that the affixed tag not be removed until the examination has been completed. The term "promptly" means before the end of the next shift during which a qualified mechanic is scheduled to work.

25.2.b.1.D. A mine operator must retain a log of any equipment tagged pursuant to this section. The log must include the date the equipment is tagged, the date the equipment is examined, the name of the person examining the equipment, and any action taken as a result of the examination. The operator must retain the information in the log for one (1) year after the date the tagged equipment was examined.

25.2.b.1.E. Persons authorized by a mine operator to maintain diesel equipment must be qualified, by virtue of training or experience, to ensure that the maintenance standards are observed. An operator must retain appropriate evidence of the competence of any person to perform specific maintenance tasks in compliance with those standards for one (1) year after the date of any maintenance, and upon request must provide the documentation to the authorized representative of the Director.

25.3. Engines.

25.3.a. Any diesel engine introduced into an underground area of a mine covered by this

part after July 5, 2001, other than an engine in an ambulance or fire fighting equipment which is utilized in accordance with mine fire fighting and evacuation plans, must either:

25.3.a.1. Have affixed a plate evidencing approval of the engine pursuant to 30 C.F.R .; or

25.3.a.2. Meet or exceed the applicable particulate matter emission requirements of the United States Environmental Protection Agency.

25.3.b. For purposes of subdivision 26.3.a .:

25.3.b.1. The term "introduced" means any engine added to the underground inventory of engines of the mine in question, including:

25.3.b.1.A. An engine in newly purchased equipment;

25.3.b.1.B. An engine in used equipment brought into the mine; and

25.3.b.1.C. A replacement engine that has a different serial number than the engine it is replacing; but

25.3.b.2. The term "introduced" does not include engines that were previously part of the mine inventory and rebuilt.

25.3.b.3. The term "introduced" does not include the transfer of engines or equipment from the inventory of one underground mine to another underground mine operated by the same mine operator.

25.4. Training.

25.4.a. Mine operators must provide annual training to all miners at a mine covered by this

section who can reasonably be expected to be exposed to diesel emissions on that property. The training must include:

25.4.a.1. The health risks associated with exposure to diesel particulate matter;

25.4.a.2. The methods used in the mine to control diesel particulate matter concentrations;

25.4.a.3. Identification of the personnel responsible for maintaining those controls; and

25.4.a.4. Actions miners must take to ensure the controls operate as intended.

25.4.b. An operator must retain a record at the mine site of the training required by this

section for one (1) year after completion of the training.

25.5. Exposure monitoring.

25.5.a. Mine operators must monitor as often as necessary to effectively determine, under conditions that can be reasonably anticipated in the mine, whether the average personal full-shift airborne exposure to DPM exceeds the DPM limit specified in the MSHA standard.

25.5.b. The mine operator must provide affected miners with an opportunity to observe exposure monitoring required by this section. Mine operators must give prior notice to affected miners of the date and time of intended monitoring.

25.5.c. If any monitoring performed under this section indicates that a miner's exposure to diesel particulate matter exceeds the DPM limit specified in the current MSHA standard, the operator must promptly post notice of the corrective action being taken on the mine bulletin board, initiate corrective action by the next work shift, and promptly complete such corrective action. # 25 5.d. Documentation.

25.5.d.1. The results of monitoring for diesel particulate matter, including any results received by a mine operator from sampling performed by MSHA or the West Virginia Office of Miners'

Health, Safety and Training, must be posted on the mine bulletin board within fifteen (15) days of receipt and must remain posted for thirty (30) days. The operator must provide a copy of the results to the authorized representative of the miners.

25.5.d.2. The mine operator must retain for five (5) years (from the date of sampling) the results of any samples the operator collected as a result of monitoring under this section and information about the sampling method used for obtaining the samples.

25.5.e. Records and Retention. The operator must make available to the Director or authorized representative any records required to be retained by MSHA under the DPM standard. # §56-20-26. Independent Contractor Register.

26.1. All independent contractors as defined in subsection 3.42 of these rules shall register with the West Virginia Office of Miners' Health, Safety and Training within sixty (60) days of the effective date of these rules and receive a contractor identification number before performing services or construction work at quarries in this state. A one-time fee of fifty dollars ($50.00) will be required to register.

26.2. In the event the quarry-only independent contractor ceases working on quarry mine property, they shall notify the Director in writing within sixty (60) days.

26.3. The quarry-only independent contractor permit is for work performed at quarries only and does not include working on coal mine property.

26.4. To register, all independent contractors shall provide the West Virginia Office of Miners'

Health, Safety and Training the following information on forms provided by the West Virginia Office of Miners' Health, Safety and Training:

26.4.a. The independent contractor's trade name, business address, and business telephone;

26.4.b. A general description of the nature of the work to be performed by the independent contractor; and

26.4.c. The independent contractor's address of record for service of citations or other documents involving the independent contractor.

26.5. If any of the above information changes, the independent contractor shall advise the West Virginia Office of Miners' Health, Safety and Training of such change within thirty (30) days.

26.6. Upon receipt of the above information, the West Virginia Office of Miners' Health, Safety and Training shall issue a contractor identification number. Prompt issuance of the contractor identification number shall not be unreasonably withheld.

26.7. Prior to performing work at the quarry, each independent contractor shall provide the production operator the information contained in subsection 26.4, along with his West Virginia Office of Miners' Health, Safety and Training contractor identification number.

26.8. Each production operator shall maintain in writing at the quarry the information required by subsection 26.7 for each independent contractor at the quarry. The production operator shall provide the above information to an authorized representative of the Director upon the beginning of any inspection.

W. Va. Code R. § 56-20-27 Service of Documents; Independent Contractors. Service of notices, orders, and other documents upon independent contractors shall be completed upon delivery to the independent contractor at the work site and mailed to the independent contractor's address of record. A copy of all notices, orders, and other required documents shall be posted on a conspicuous bulletin board at the work site

W. Va. Code R. § 56-20-28 Address of Record and Telephone Number; Independent Contractors. The address and telephone number required under this section shall be the independent contractor's official address and telephone number for purposes of Chapter 22A of the West Virginia Code and these rules. Service of documents upon independent contractors may be proved by a certified mail return receipt showing that the documents were delivered to the address of record, or showing that the independent contractor is no longer at that address and has established no forwarding address because delivery was not accepted at that address, or that no such address exists. Independent contractors may request service by delivery to another appropriate address of record provided by the independent contractor. # §56-20-29. Enforcement of Citations and Orders

29.1. These rules shall not be construed to limit the basic compliance responsibilities of production operators. Overall compliance responsibility of production operators shall include assuring compliance with the West Virginia Code provisions and rules which apply to the work being performed by independent contractors at the quarry.

29.2. It is the general enforcement policy of the West Virginia Office of Miners' Health, Safety and Training that the independent contractor will be held responsible for violations committed by the independent contractor or its employees where the production operator has complied with section 26 of these rules.

29.3. Enforcement action against production operators for violations which involve independent contractors may be taken by the West Virginia Miners' Health, Safety and Training where the production operator has contributed to the existence of a violation, or the production operator's miners are exposed to the hazard, or the production operator has control over the existence of the hazard.

29.4. A production operator may be properly cited for a violation of the rules involving an independent contractor where:

29.4.a. The production operator has contributed by either an act or an omission to the occurrence of a violation in the course of an independent contractor's work, or

29.4.b. The production operator has contributed by either an act or omission to the continued existence of a violation committed by an independent contractor, or

29.4.c. The production operator's miners are exposed to the hazard, or

29.4.d. The production operator has control over the condition that needs abatement.

29.5. In addition to the provisions of section 29.4 of these rules, the production operator may also be required to assure continued compliance with the West Virginia Code and rules applicable to an independent contractor at the quarry until the contractor is fully able to assume compliance responsibility.

29.6. Whenever a mine inspector finds a violation or imminent danger in an area where an independent contractor is operating, such inspector shall make a determination whether to issue the appropriate Notice of Violation or order to either the production operator or the independent contractor, or both, based upon the criteria set out in sections 29.2 and 29.3 of these rules.

29.7. In instances where the work performed will last five (5) days or less at quarry operations, an independent contractor's identification number will not be required. No more than five (5) days work in a calendar year will be allowed without obtaining a contractor identification number issued by the West Virginia Office of Miners' Health, Safety & Training.

29.8. Independent contractors working at quarries shall comply with Title 56, Series 8 of the West Virginia Administrative Rules.

W. Va. Code R. § 56-20-30 Construction. After the effective date of this rule, construction operations within the quarry industry shall conform to Occupational Safety and Health Administration (OSHA) regulations (29 C.F.R

Part 1926) in effect at the time of construction. # §56-20-31. Assessment of Quarry-Related Violations.

31.1. The procedures found in Title 56, Series 1 shall govern the assessment of quarry-related violations.

31.2. All civil monetary penalties assessed by the Director, pursuant to Section 21, Article 1,

Chapter 22A of the West Virginia Code, for quarry-related violations shall be not less than twenty-five percent (25%) nor greater than fifty percent (50%) of the value assessed against coal mines.

31.3. The civil monetary penalty for individual personal assessments shall not be more than two hundred fifty dollars ($250.00) for each occurrence of the violation.

TABLE 1 (See page 19, Subdivision 9.4.b.)

Transmitter Power (Watts)

Minimum Distance (Feet)

(except FM mobile) 5 - 25 25 - 50 50 - 100 100 - 250 250 - 500 500 - 1000 1000 - 2500 2500 - 5000 5000 - 10000 10000 - 25000 25000 - 50000 50000 - 10000 Transmitter Power (Watts) (FM mobile)

Minimum Distance (Feet) 1 - 10 10 - 30 30 - 60 60 - 250

Series 21 Self-Contained Self-Rescue Device Immediate Reach Interpretive Rule

W. Va. Code R. § 56-21-1 General

1.1. Scope and Purpose. -- The purpose of this interpretive rule is to disclose how the Office of Miners’ Health, Safety and Training will interpret, clarify and explain the term immediate reach, codified in W. Va. Code § 22A-2-55(f)(1).

1.2. Authority. -- W. Va. Code § 22A-1-6.

1.3. Filing Date. -- July 30, 2015.

1.4. Effective Date. -- September 1, 2015.

W. Va. Code R. § 56-21-2 Immediate Reach

2.1. The Office of Miners’ Health, Safety and Training notes that pursuant to W. Va. Code § 22A-2-55(f)(1), when an individual is underground the self-contained self-rescue device must be worn, or located within immediate reach. The Office of Miners’ Health, Safety and Training interprets immediate reach to mean arm’s reach which is a distance of no more than three (3) feet from the individual.

Series 22 Rules Governing the Certification, Recertification and Training of EMT-Miners and the Certification of EMT-M Instructors

W. Va. Code R. § 56-22-1 General

1.1. Scope. -- This rule establishes a program for the certification, recertification and training of EMT‑Miners (EMT-M) and the certification of EMT-M Instructors.

1.2. Authority. -- W. Va. Code 22A-10-3(g).

1.3. Filing Date. -- May 8, 2025.

1.4. Effective Date. -- May 8, 2025.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2030.

W. Va. Code R. § 56-22-2 Purpose

2.1. This rule establishes a program for the certification, recertification and training of EMT‑Miners and the certification of EMT-M Instructors.

W. Va. Code R. § 56-22-3 Definitions

3.1. All definitions found in W. Va. Code 22A-1-2 and W. Va. Code R. 56-3-3 are applicable to this rule.

3.2. Board. The term Board means the Board of Coal Mine Health and Safety.

3.3. CPR. The term CPR means cardiopulmonary resuscitation.

3.4. CPR-Instructor. The term CPR-Instructor means a person possessing a valid and current CPR-Instructor card issued by a nationally-recognized CPR-Instructor training organization.

3.5. Director. The term Director means the Director of the Office of Miners Health, Safety and Training.

3.6. EMT-M. The term EMT-M means an individual trained and certified to be an emergency medical technician for the mining industry. The term EMT-M means an EMT-Miner as well as EMT‑Mining.

3.7. EMT-M Instructor. The term EMT-M Instructor means an individual certified by the Director to teach the certification and recertification courses and administer the examinations based on his or her qualifications, experience and background.

3.8. Form prescribed by the Director. The term form prescribed by the Director means a form which at a minimum shall require: The full legal name, the full Social Security number, date of birth, mailing address, telephone number (including cell number), and E-mail address of the applicant.

3.9. National DOT Curriculum for First Responders. The term National DOT Curriculum for First Responders means the United States Department of Transportation, National Highway Traffic Safety Administration, First Responder National Standard Curriculum.

3.10. Recertified or Recertification. The term recertified or recertification means either taking the eight (8) hour annual retraining module by December 31 each year or by taking the thirty-two (32) hour retraining course once every three (3) years. Provided, the term recertified or recertification shall not mean the method by which an individual shall regain an invalid EMT-M certification after the individual misses two (2) modules.

W. Va. Code R. § 56-22-4 Certification and Recertification Requirements for EMT-M

4.1. An applicant for certification as an EMT-M shall:

4.1.1. Be at least eighteen (18) years old;

4.1.2. Apply on a form prescribed by the Director;

4.1.3. Possess a valid and current CPR certification;

4.1.4. Successfully complete the EMT-M education program authorized by the Director in consultation with the Board; and

4.1.5. Successfully pass the EMT-M cognitive and skills examinations authorized by the Director in consultation with the Board.

4.2. The Director may charge a ten dollar ($10.00) application fee.

4.3. The initial EMT-M certification is valid for a period of three (3) calendar years. During the third year to remain current, the EMT-M must comply with Section 4.4. below.

4.4. To be recertified as an EMT-M, a certificate holder shall:

4.4.1. Apply on a form prescribed by the Director;

4.4.2. Possess a valid and current CPR certification;

4.4.3. Successfully complete one of the following:

4.4.3.a. A thirty-two (32) hour EMT-M recertification course authorized by the Director in consultation with the Board prior to the expiration of the three-year anniversary of the certification; or

4.4.3.b. Annual eight (8) hour retraining and testing programs authorized by the Director in consultation with the Board; and

4.4.4. Successfully pass the EMT-M mining cognitive and skills recertification examination(s) authorized by the Director in consultation with the Board. The recertification examination(s) shall be part of the Instructor evaluations.

4.5. At the end of the annual recertification module or thirty-two (32) hour recertification course, the EMT-M instructor shall submit a roster of the individuals who have successfully completed the annual recertification module or the thirty-two (32) hour recertification course and instructor evaluations. The EMT-M certification of any individual not completing the annual refresher course, absent just cause as determined by the Director, shall become invalid until such time as he or she takes the missed module. If at any time two (2) modules are missed, then the individual must retake the initial sixty (60) hour course and pass the required examinations.

4.6. The EMT-M Instructor shall keep copies of the students examination skill sheets for at least one (1) year when conducting the annual refresher course.

4.7. An EMT-M may only provide EMT-M services on mining property permitted by the West Virginia Office of Miners Health, Safety and Training.

4.8. An EMT or medical professionals in other jurisdictions who possess equivalent training as an EMT-M under this rule may apply on a form prescribed by the Director to be certified as an EMT-M subject to approval by the Director in consultation with the Board.

4.9. The Director or his authorized representative shall conduct the examinations for the initial EMT-M certification unless another entity is authorized by the Director in consultation with the Board to conduct the examinations.

4.10. The initial applicant must have a minimum score of seventy (70) percent to be certified as an EMT-M.

4.11. The initial applicant shall have up to one (1) year to retake the parts of the test that he or she failed in order to obtain the EMT-M certification. After one (1) year has passed, if the applicant fails to obtain his/her certification, he/she must repeat the entire EMT-M course.

4.12. The EMT-M curriculum in conjunction with the National DOT Curriculum for First Responders shall be followed when teaching the sixty (60) hour EMT-M certification course. Updates in the DOT curriculum will also apply to the EMT-M curriculum.

W. Va. Code R. § 56-22-5 Application Requirements for an Initial EMT-M Instructor Certification

5.1. An applicant for certification as an EMT-M Instructor shall:

5.1.1. Be a certified or qualified first-aid instructor;

5.1.2. Possess a valid and current EMT-M certificate or its equivalent or be a medical professional approved by the Director in consultation with the Board;

5.1.3. Be a CPR instructor;

5.1.4. Be at least eighteen (18) years old; and

5.1.5. Apply on a form prescribed by the Director.

5.2. An EMT-M Instructor certification shall remain valid so long as the Instructor meets the requirements of Section 5.1., or the EMT-M Instructor certification is revoked by the Director for good cause. The EMT-M Instructor shall provide documentation to the Director to ensure the requirements of Section 5.1. are valid and current.

5.3. The Director may charge a ten dollar ($10.00) application fee.

W. Va. Code R. § 56-22-6 Certification Requirements for Grandfathered EMT-M Instructors

6.1. Grandfather clause. An EMT-M Instructor in good standing on the effective date of this rule shall be recognized as an EMT-M Instructor so long as he or she possesses a current and valid first aid instructor certificate and a current and valid CPR instructor certificate.

6.2. An EMT-M Instructor certification, grandfathered under Section 6.1., shall remain valid so long as the Instructor meets the requirements of Section 6.1. or the EMT-M Instructor certification is revoked by the Director for good cause. The EMT-M Instructor shall provide documentation to the Director to ensure the requirements of Section 6.1. are valid and current.

W. Va. Code R. § 56-22-7 Responsibilities and Duties of an EMT-M Instructor

7.1. Any person desiring to teach the initial sixty (60) hour EMT-M course, the thirty-two (32) hour course or the eight (8) hour recertification modules shall possess a valid EMT-M Instructor certification issued by the Director.

7.2. An EMT-M Instructor may bring in persons with special expertise to assist in teaching the course so long as they are under the direct supervision of an EMT-M Instructor.

7.3. The EMT-M Instructor shall notify the regional office in the region where the certification or recertification course is being given as soon as practical prior to starting the course. The EMT-M Instructor shall provide directions to the training facility, contact information, the number of applicants, and verification of a valid EMT-M Instructor certification as required in 5.2. or 6.2. of this Section. The class shall be limited to twenty-five (25) students unless approved by the Director.

7.4. The EMT-M Instructor shall provide a CPR certificate from a nationally-recognized CPR training organization to those students who successfully complete the CPR training.

Series 23 Rules for Operating Diesel Equipment in Underground Mines in West Virginia

W. Va. Code R. § 56-23-1 General

1.1. Scope. -- This legislative rule establishes the standards, procedural and interpretative guidelines under which diesel powered equipment may be used in an underground coal mine in the state of West Virginia.

1.2. Authority. -- W. Va. Code 22A-2A-1001 and 22A-2A-308(a).

1.3. Filing Date -- April 24, 2024.

1.4. Effective Date -- April 24, 2024.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2029.

W. Va. Code R. § 56-23-2 Definitions

2.1. Unless the context in which a word or phrase appears clearly requires a different meaning, all terms used in this rule that are not defined herein shall have the meanings set forth in W. Va. Code 22A-1-2.

2.2. ASE certified diesel mechanic means a diesel mechanic certified by the National Institute for Automotive Service Excellence.

2.3. Board means the board of coal mine health and safety continued by W. Va. Code 22A-6-3.

2.4. Certificate of approval means a formal document issued by MSHA stating that a complete assembly has met the requirements of part 36, title thirty of the code of federal regulations, 30 CFR 36.1, et seq., for mobile diesel-powered transportation equipment and authorizing the use and attachment of an official approval plate so indicating.

2.5. Diesel fuel tank means a closed metal vessel specifically designed for the storage or transport of diesel fuel.

2.6. Diesel fuel transportation unit means a self-propelled or portable wheeled vehicle used to transport a diesel fuel tank.

2.7. Diesel engine means any compression ignition internal combustion engine using the basic diesel cycle where combustion results from the spraying of fuel into air heated by compression.

2.8. Diesel power package means a diesel engine with an intake system, exhaust system, and a safety shutdown system installed that meets the specific requirements for MSHA approval of diesel power packages intended for use in approved equipment in areas of underground coal mines where electric equipment is required to be permissible.

2.9. Director means the director of the office of miners health, safety and training or his or her authorized representative.

2.10. Exhaust emission means any substance emitted to the atmosphere from the exhaust port of the combustion chamber of a diesel engine.

2.11. Exhaust emissions control and conditioning system means a device or combination of devices that will collect and treat diesel exhaust emissions at the exhaust port of the engine, and will reduce the volume of, or eliminate emissions of, diesel particulate matter, carbon monoxide and oxides of nitrogen in accordance with the requirements and standards of the commission established in accordance with the provisions of W. Va. Code 22A-2A-403.

2.12. ISO 8178-1 means an international standard set by the International Organization for Standardization that specifies the standard reference temperature for geometrical product specification and verification.

2.13. MSHA means the mine safety and health administration of the United States Department of Labor.

2.14. Office of miners health, safety and training means the West Virginia office of miners health, safety and training continued by W. Va. Code 22A-1-1.

2.15. Permanent underground diesel fuel storage facility means a facility designed and constructed to remain at one location for the storage or dispensing of diesel fuel, which does not move as mining progresses.

2.16. Safety can means a metal container intended for storage, transport or dispensing of diesel fuel, with a nominal capacity of five gallons, listed or approved by a nationally recognized independent testing laboratory.

2.17. Temporary underground diesel fuel storage area means an area of a mine provided for the short-term storage of diesel fuel in a fuel transportation unit, which moves as mining progresses.

2.18. Underground diesel generator means any machine powered with an approved diesel power package and electrical components used as an alternative electrical power source.

W. Va. Code R. § 56-23-3 Underground Use

3.1. Underground use of inby and outby diesel-powered equipment, including mobile equipment, stationary equipment and equipment of all horsepower ratings, may only be approved, operated and maintained as provided in this rule, except for emergency fire-fighting equipment to be used specifically for that purpose.

3.2. All diesel-powered equipment shall be attended while in operation with the engine running in underground mines. For purposes of this rule, attended shall mean a diesel equipment operator is within sight or sound of the diesel-powered equipment.

3.3. Inby and outby diesel-powered equipment may be used in underground mines if the inby or outby diesel-powered equipment uses an engine approved or certified by MSHA, as applicable, for inby or outby use that, when tested at the maximum fuel-air ratio, does not require an MSHA Part 7 approval plate ventilation rate exceeding 75 c.f.m. per rated horsepower. Should MSHA promulgate new regulations that change the MSHA part 7 approval plate ventilation rate, the cfm requirement per rated horsepower will be revised either up or down on a direct ratio basis upon the recommendation of the director.

W. Va. Code R. § 56-23-4 Diesel-Powered Equipment Package

4.1. All diesel-powered equipment shall be approved by the director as a complete diesel-powered equipment package, which shall be subject to all of the requirements, standards and procedures set forth in this rule.

4.2. Diesel engines shall be certified or approved, as applicable, by MSHA and maintained in accordance with MSHA certification or approval and the directors approval.

4.3. All approved diesel powered equipment packages shall be listed on an inventory sheet submitted to the director with a copy maintained at the mine. The following information shall be provided on the inventory list:

4.3.1. Name, address and permit number of the mine.

4.3.2. The telephone number and name of the contact person responsible for maintenance and testing of the diesel equipment.

4.3.3. The following specific information for each engine:

4.3.3.a. Manufacturer, serial number and model of the equipment using the power-package.

4.3.3.b. Manufacturer, model number and serial number of the engine.

4.3.3.c. MSHA 7E approval number.

4.3.3.d. Rated HP and RPM.

4.3.3.e. DPM gr/hr rating and mg over m to the third power.

4.3.3.f. Ventilation rate.

4.3.4. The following specific information for each filter system:

4.3.4.a. Manufacturer and model of the filter system.

4.3.4.b. MSHA Efficiency Rating of the specific filter system(s) or an accepted third party rating.

4.3.4.c. System type and composition (i.e., Passively Regenerated Cordierite, etc.).

4.3.4.d. The manufacturer/model of regeneration system (if applicable).

4.4. The mine operator shall be permitted to replace a filter or catalyst of the same make and model without contacting the office of miners health, safety and training. A record must be maintained of all of the pertinent data and available for inspection.

W. Va. Code R. § 56-23-5 Exhaust Emissions Control

5.1. Underground diesel-powered equipment shall include an exhaust emissions control and conditioning system that has been laboratory tested with the diesel engine, except as provided in section 5.3., using the ISO 8178-1 test and has resulted in diesel particulate matter emissions that do not exceed an average concentration of 0.12 mg over m to the third power when diluted by one hundred percent of the MSHA Part 7 approval plate ventilation rate for that diesel engine. Should MSHA promulgate new regulations that change the MSHA Part 7 approval plate ventilation rate, the dilution percentage relative to the approval plate ventilation rate will be adjusted either up or down on a direct ratio basis upon recommendation of the director.

5.2. The exhaust emissions control and conditioning system shall be required to successfully complete a single series of laboratory tests conducted at a laboratory accepted by the director for each diesel engine, except as provided in section 5.3.

5.3. An exhaust emissions control and conditioning system may be approved for multiple diesel engine applications through a single series of laboratory tests, known as the ISO 8178-1 test, only if data is provided to the director that reliably verifies that the exhaust emissions control and conditioning system will meet, for each diesel engine, the in-laboratory diesel particulate matter standard established by this section. Data provided to satisfy this provision shall include diesel particulate matter production rates for the specified engine as measured during the ISO 8178-1 test, if available. If ISO 8178-1 test data for diesel particulate matter production is not available for a specified engine, comparable data may be provided to the director that reliably verifies that the exhaust emissions control and conditioning system will meet, for the specified diesel engine, the in-laboratory diesel particulate matter standard established by this section. This standard shall only be used for in-laboratory testing for approval of diesel-powered equipment for use underground.

5.4. The exhaust emissions control and conditioning system shall include the following:

5.4.1. A diesel particulate matter (DPM) filter that has proven capable of at least a seventy-five percent reduction of diesel particulate matter.

5.4.2. An oxidation catalyst or other gaseous emissions control device capable of reducing undiluted carbon monoxide emissions to 100 ppm or less under all conditions of operation at normal engine operating temperature range.

5.4.3. An engine surface temperature control capable of maintaining significant external surface temperatures below three hundred two degrees Fahrenheit.

5.4.4. A system capable of reducing the exhaust gas temperature below three hundred two degrees Fahrenheit.

5.4.5. An automatic engine shutdown system that will shut off the engine before the exhaust gas temperature reaches three hundred two degrees Fahrenheit and, if waterjacketed components are used, before the engine coolant temperature reaches two hundred twelve degrees Fahrenheit. A warning shall be provided to alert the equipment operator prior to engine shutdown.

5.4.6. A spark arrestor system.

5.4.7. A flame arrestor system.

5.4.8. A sampling port for measurement of undiluted and untreated exhaust gases as they leave the engine.

5.4.9. A sampling port for measurement of treated undiluted exhaust gases before they enter the mine atmosphere.

5.4.10. For inby diesel equipment, any additional requirements of MSHA regulations at 30 CFR Part 36 (relating to mobile diesel-powered transportation equipment for gassy noncoal mines and tunnels).

5.5. On-board engine performance and maintenance diagnostics systems shall be capable of continuously monitoring and giving readouts for subsections 5.5.1. thru 5.5.8. of this section. The diagnostics system shall identify levels that exceed the engine and/or component manufacturers recommendation or the applicable MSHA or directors requirements as to the following:

5.5.1. Engine speed;

5.5.2. Operating hour meter;

5.5.3. Total intake restriction;

5.5.4. Total exhaust backpressure;

5.5.5. Cooled exhaust gas temperature;

5.5.6. Coolant temperature;

5.5.7. Engine oil pressure;

5.5.8. Engine oil temperature.

W. Va. Code R. § 56-23-6 Ventilation

6.1. Minimum quantities of air where diesel-powered equipment is operated shall be maintained pursuant to this section.

6.2. Each specific model of diesel-powered equipment shall be approved by the director before it is taken underground. The director shall require an approval plate that must be attached to each piece of the diesel-powered equipment. The approval plate shall specify the minimum ventilating air quantity for the specific piece of diesel-powered equipment. The minimum ventilating air quantity shall be determined by the director based on the amount of air necessary at all times to maintain the exhaust emissions at levels not exceeding the exposure limits established in section 7 of this rule.

6.3. 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 be made at the individual unit of diesel-powered equipment.

6.4. Where multiple units are operated, the minimum quantity shall be at least one hundred percent of MSHAs Part 7 approval plate quantities for each unit operating in that split. 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. Should MSHA promulgate new regulations that change the MSHA Part 7 approval plate ventilation rate, the minimum quantity where multiple units are operated shall be revised on a direct ratio basis upon recommendation of the director.

6.5. The minimum quantities of air on any split where any diesel-powered equipment is operated shall be in accordance with the minimum air quantities required in sections 6.1 and 6.2 and shall be specified in the mine diesel ventilation plan.

W. Va. Code R. § 56-23-7 Exhaust Gas Monitoring and Control

7.1. In monitoring and controlling exhaust gases, the ambient concentration of exhaust gases in the mine atmosphere shall not exceed 35 ppm ceiling for carbon monoxide (CO), 25 ppm ceiling for nitric oxide (NO) and 3 ppm ceiling for nitrogen dioxide (NO2). The concentration of these exhaust gases shall be measured at the equipment operators or equipment attendants position and inby the last piece of diesel-powered equipment operating in the same split of air. Measurements shall be made weekly or more often if necessary by a qualified person and shall be conducted pursuant to the requirements of this section.

7.2. Measurement of exhaust gases shall be made with a sampling instrument no less precise than detector tubes.

7.3. If the concentration of any of the gases listed in section 7.1 is seventy-five percent or more of its exposure limit, changes to the use of the diesel equipment, the mine ventilation or other modifications to the mining process shall be made.

7.4. If the concentration of any of the gases listed in section 7.1 exceeds the exposure limit, the diesel equipment operating in that split shall be removed from service immediately and corrective action taken. After corrective action has been taken by the mine operator, the diesel equipment may be returned to service in its regular operating mode for emissions testing purposes only, and emissions testing shall be conducted immediately to assure that the concentration does not exceed seventy-five per cent of the exposure limit. Corrective action must be taken until the concentration does not exceed seventy-five percent of the exposure limit before the diesel equipment can be returned to full operation.

7.5. In addition to the other maintenance requirements set forth in this rule, the mine operator shall comply with the following requirements:

7.5.1. Repair or adjustment of the fuel injection system, engine timing or exhaust omissions control and conditioning systems shall only be performed by qualified mechanics authorized by the engine manufacturer or ASE certified diesel mechanics.

7.5.2. Complete testing of the emissions system in accordance with section 20 of this rule shall be conducted prior to any piece of diesel-powered equipment being put into service, after any repair or adjustment to the fuel delivery system, engine timing or exhaust emissions control and conditioning system.

7.5.3. Service and maintenance of the intake air filter exhaust particulate filter and the exhaust system shall be performed at specific time intervals based on the component manufacturers recommendation, compliance with the engine or emissions control operation specifications and, as needed, based on the on-board diagnostics and/or emissions test results. Accurate records shall be maintained of all such service and maintenance.

W. Va. Code R. § 56-23-8 Fuel Storage Facilities

8.1. An underground diesel fuel storage facility shall be any facility designed and constructed to provide for the storage of any mobile diesel fuel transportation unit(s) or the dispensing of diesel fuel.

8.2. Diesel-powered equipment shall be used underground only with fuel that meets the standards of the most recently approved EPA guidelines for over-the-road-fuel. Additionally, the fuel shall also meet the ASTM D975 fuel standards with a flash point of one hundred degrees Fahrenheit or greater at standard temperature and pressure. The operator shall maintain a copy of the most recent delivery receipt from the supplier that will prove that the fuel used underground meets the standard listed above.

8.3. Underground diesel fuel storage facilities shall meet the following general requirements:

8.3.1. Fixed underground diesel fuel storage tanks are prohibited.

8.3.2. No more than five hundred gallons of diesel fuel shall be stored in each underground diesel fuel storage facility.

8.4. Underground diesel fuel storage facilities shall be located as follows:

8.4.1. At least one hundred feet from shafts, slopes, shops and explosives magazines;

8.4.2. At least twenty-five feet from trolley wires, haulage ways, power cables and electric equipment not necessary for the operation of the storage facilities; and

8.4.3. In an area that is as dry as practicable.

8.5. Underground diesel fuel storage facilities shall meet the construction requirements and safety precautions enumerated in this section.

8.5.1. Underground diesel fuel storage facilities shall meet all of the following:

8.5.1.a. Be constructed of noncombustible materials and provided with either self-closing or automatic closing doors.

8.5.1.b. Be ventilated directly into the return air course using noncombustible materials.

8.5.1.c. Be equipped with an automatic fire suppression system complying with section 12 of this rule. The director may approve an alternate method of complying with section 12 of this rule on a mine by mine basis.

8.5.1.d. Be equipped with at least two portable twenty-pound multipurpose dry-chemical type fire extinguishers.

8.5.1.e. Be marked with conspicuous signs designating combustible liquid storage.

8.5.1.f. Be included in the pre-shift examination.

8.5.2. Welding or cutting other than that performed in accordance with subdivisions 8.5.2.a. and 8.5.2.b. below shall not be done within fifty (50) feet of a diesel fuel storage facility. When it is necessary to weld, cut or solder pipelines, cylinders, tanks or containers that may have contained diesel fuel, the following requirements shall apply:

8.5.2.a. Cutting or welding shall not be performed on or within containers or tanks that have contained combustible or flammable materials until such containers or tanks have been thoroughly purged and cleaned or inerted and a vent or opening is provided to allow for sufficient release of any buildup pressure before heat is applied.

8.5.2.b. Diesel fuel shall not be allowed to enter pipelines or containers that have been welded, soldered, brazed or cut until the metal has cooled to ambient temperature.

W. Va. Code R. § 56-23-9 Transfer of Diesel Fuel

9.1. Diesel fuel shall be transferred as provided in this section.

9.2. When diesel fuel is transferred by means of a pump and a hose equipped with a nozzle containing a self-closing valve, a powered pump may be used only if:

9.2.1. The hose is equipped with a nozzle containing a self-closing valve without a latch-open device; and

9.2.2. The pump is equipped with an accessible emergency shutoff switch.

9.3. Diesel fuel shall not be transferred using compressed gas.

9.4. Diesel fuel shall not be transferred to the fuel tank of diesel-powered equipment while the equipments engine is running.

9.5. Diesel fuel piping systems shall be designed and operated as dry systems.

9.6. All piping, valves and fittings shall meet the following:

9.6.1. Be capable of withstanding working pressures and stresses.

9.6.2. Be capable of withstanding four times the static pressures.

9.6.3. Be compatible with diesel fuel.

9.6.4. Be maintained in a manner that prevents leakage.

9.7. Vertical pipelines shall have manual shutoff valves installed at the surface filling point and at the underground discharge point.

9.8. Unburied diesel fuel pipelines shall not exceed three hundred feet in length and shall have shutoff valves located at each end of the unburied pipeline.

9.9. Horizontal pipelines shall not be used to distribute fuel throughout the mine.

9.10. Diesel fuel piping systems shall be used only to transport fuel from the surface directly to a single underground diesel fuel transfer point.

9.11. When boreholes are used, the diesel fuel piping system shall not be located in a borehole with electric power cables.

9.12. Diesel fuel pipelines located in any shaft shall be included as part of the required examination of the shaft.

9.13. Diesel fuel piping systems located in entries shall not be located on the same side of the entry as electric cables or power lines.

9.14. Diesel fuel pipelines shall not be located in any trolley-haulage entry, except that they may cross the entry perpendicular if buried or otherwise protected in steel conduit or an equivalent from damage and sealed.

9.15. Diesel fuel piping systems shall be protected to prevent physical damage.

W. Va. Code R. § 56-23-10 Containers

10.1. Containers for the transport of diesel fuel shall meet the requirements of this section.

10.2. Diesel fuel shall be transported only in containers specifically designed for the transport of diesel fuel.

10.3. No more than one safety can, conspicuously marked, shall be transported on a vehicle at any time.

10.4. Containers other than safety cans used to transport diesel fuel shall be provided with the following:

10.4.1. Devices for venting.

10.4.2. Self-closing caps.

10.4.3. Vent pipes at least as large as the fill or withdrawal connection, whichever is larger, but not less than one and one-fourth inch nominal inside diameter.

10.4.4. Liquid-tight connections for all container openings that are identified by conspicuous markings and closed when not in use.

10.4.5. Shutoff valves located within one inch of the tank shell on each connection through which liquid can normally flow.

10.5. When tanks are provided with openings for manual gauging, liquid-tight caps or covers shall be provided and shall be kept closed when not open for gauging.

10.6. Containers used for the transport of diesel fuel shall not exceed a capacity of five hundred gallons.

10.7. Containers, other than safety cans, used for the transport of diesel fuel shall be permanently fixed to the transportation unit; provided, however, that the director may develop criteria on a mine by mine basis that allows for approved diesel fuel transportation units to be transported on (or by) a secondary transportation unit to their respective work areas.

10.8. Diesel fuel transportation units shall be transported individually and not with any other cars, except that two diesel fuel transportation units up to a maximum of five hundred gallons each may be transported together.

10.9. Diesel fuel shall not be transported on conveyor belts.

10.10. When transporting diesel fuel in containers other than safety cans, a fire extinguisher shall be provided on each end of the transportation unit. The fire extinguishers shall be multipurpose type dry-chemical fire extinguishers containing a nominal weight of twenty pounds.

10.11. Diesel fuel transportation units shall have a fire suppression system that meets the requirements of section 11 of this rule.

10.12. In mines where trolley wire is used, diesel fuel transportation units shall be provided with insulating material to protect the units from energized trolley wire, and the distance between the diesel fuel transportation unit and the trolley wire shall not be less than twelve inches, or the trolley wire shall be de-energized when diesel fuel transportation units are transported through the area.

10.13. Unattended diesel fuel transportation units shall be parked only in underground diesel fuel storage facilities.

10.14. Safety cans shall be used for emergency fueling only.

10.15. Safety cans shall be clearly marked, have a maximum capacity of five gallons and be constructed of metal and equipped with a nozzle and self-closing valves.

W. Va. Code R. § 56-23-11 Fire Suppression for Equipment and Transportation

11.1. Fire suppression systems for diesel-powered equipment and fuel transportation units shall meet the requirements of this section.

11.2. The system must be an automatic multipurpose dry-powder type fire suppression system suitable for the intended application and listed or approved by a nationally recognized independent testing laboratory. Installation requirements are as follows:

11.2.1. The system shall be installed in accordance with the manufacturers specifications and the limitations of the listing or approval.

11.2.2. The system shall be installed in a protected location or guarded to minimize physical damage from routine operations.

11.2.3. Suppressant agent distribution tubing or piping of the system shall be secured and protected against damage, including pinching, crimping, stretching, abrasion and corrosion.

11.2.4. Discharge nozzles of the system shall be positioned and aimed for maximum fire suppression effectiveness in the protected areas. Nozzles shall also be protected against the entrance of foreign materials such as mud, coal dust or rock dust that could prevent proper discharge of suppressant agent.

11.3. The fire suppression system shall provide automatic fire detection and suppression for all of the following:

11.3.1. The engine, transmission, hydraulic pumps and tanks, fuel tanks, exposed brake units, air compressors and battery areas, as applicable, on all diesel-powered equipment.

11.3.2. Fuel containers and electric panels or controls used during fuel transfer operations on fuel transportation units.

11.4. The fire suppression system shall include a system fault and fire alarm annunciator that can be seen and heard by the equipment operator.

11.5. The fire suppression system shall provide for automatic engine shutdown. Engine shutdown and discharge of suppressant agent may be delayed for a maximum of fifteen (15) seconds after the fire alarm annunciator alerts the operator.

11.6. At least two manual actuators shall be provided with at least one manual actuator at each end of the equipment. If the equipment is provided with an operators compartment, one of the mechanical actuators shall be located in the compartment within easy reach of the operator. For stationary equipment, the two manual actuators shall be located with at least one actuator on the stationary equipment and at least one actuator a safe distance away from the equipment and in intake air.

W. Va. Code R. § 56-23-12 Fire Suppression for Storage Areas

12.1. Fire suppression systems for diesel fuel storage areas shall meet the requirements of this section.

12.2. The system shall be an automatic multipurpose dry-powder type fire suppression system or other system of equal capability, suitable for the intended application and listed or approved by a nationally recognized independent testing laboratory. The system shall meet the following installation requirements:

12.2.1. The system shall be installed in accordance with the manufacturers specifications and the limitations of the listing or approval.

12.2.2. The system shall be installed in a protected location or guarded to minimize physical damage from routine operation.

12.2.3. Suppressant agent distribution tubing or piping of the system shall be secured and protected against damage, including pinching, crimping, stretching, abrasion and corrosion.

12.2.4. Discharge nozzles of the system shall be positioned and aimed for maximum fire suppression effectiveness in the protected areas. Nozzles must also be protected against the entrance of foreign materials such as mud, coal dust and rock dust that could prevent proper discharge of suppressant agent.

12.3. The fire suppressant system shall provide automatic fire detection and suppression for the fuel storage tanks, containers, safety cans, pumps, electrical panels and control equipment in fuel storage areas.

12.4. Audible and visual alarms to warn of fire or system faults shall be provided at the protected area and at a surface location that is always staffed when persons are underground. A means shall also be provided for warning all endangered persons in the event of fire.

12.5. Fire suppression systems shall include two manual actuators with at least one located within the fuel storage facility and at least one located a safe distance away from the storage facility and in intake air.

12.6. The fire suppression system shall remain operative in the event of electrical system failure.

12.7. If electrically operated, the detection and actuation circuits shall be monitored and provided with status indicators showing power and circuit continuity. If not electrically operated, a means shall be provided to indicate the functional readiness status of the system.

12.8. Fire suppression devices shall be visually inspected at least once each week by a person qualified to make such inspections.

12.9. Each fire suppression device shall be tested and maintained.

12.10. A record shall be maintained of the inspection required by this section. The record of the weekly inspections shall be maintained at an appropriate location for each fire suppression device.

12.11. All miners normally assigned to the active workings of a mine shall be instructed about any hazards inherent to the operation of all fire suppression devices installed and, where appropriate, the safeguards available for each device.

W. Va. Code R. § 56-23-13 Use of Certain Starting Aids Prohibited

13.1. The use of volatile or chemical starting aids is prohibited.

W. Va. Code R. § 56-23-14 Fueling

14.1. Fueling of diesel-powered equipment shall not be conducted in the intake escapeway unless the mine design and entry configuration make it necessary. In those cases where fueling in the intake escapeway is necessary, the mine operator shall submit a plan for approval to the director outlining the special safety precautions that will be taken to insure the protection of miners. Such plan shall specify a location, (such as end of the tail track or adjacent to the load out point), 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.

14.2. Diesel fuel and other combustible materials shall be cleaned up and not be permitted to accumulate anywhere in an underground mine or on diesel-powered or electric equipment located therein.

14.3. 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.

W. Va. Code R. § 56-23-15 Fire and Safety Training

15.1. All underground employees at the mine shall receive special instruction related to fighting fires involving diesel fuel. This training may be included in annual refresher training under MSHA regulations at 30 CFR Part 48 (relating to training and retraining of miners) or included in the fire drills required under MSHA regulations at 30 CFR 75.1101-23 (relating to program of instruction; location and use of fire fighting equipment; location of escapeways, exits and routes of travel; evacuation procedures; fire drills.)

15.2. All miners shall be trained in precautions for safe and healthful handling and disposal of diesel-powered equipment filters. All used intake air filters, exhaust diesel particulate matter filters and engine oil filters shall be placed in their original containers or other suitable enclosed containers and removed from the underground mine to the surface no less than once in a twenty-four (24) hour period. Arrangements will be made for safe handling and disposal of these filters within a timely manner after they have reached the surface.

W. Va. Code R. § 56-23-16 Maintenance

16.1. Diesel-powered equipment shall be maintained in an approved and safe condition as described in this rule or shall be removed from service.

16.2. An operator choosing to use diesel equipment in an underground coal mine must develop a maintenance plan and submit his or her plan to the director for approval. Failure of the mine operator to comply with the maintenance requirements of this section may result in the revocation of the directors approval of the complete diesel-powered equipment package, provided appropriate notification has been given to the mine operator and the procedures of this section have been taken. Upon receiving such notice, the mine operator shall have thirty days to submit a plan to achieve and maintain compliance. Such plan shall be evaluated by the director, and, upon approval, the mine operator shall implement the plan. The director shall monitor the mine operators compliance. At any time the director determines that the mine operator is unable or unwilling to comply, the director shall revoke the mine operators approval, which would in turn prohibit use of all diesel equipment at that mine.

16.3. To acquire and maintain approval of a complete diesel-powered equipment package, the mine operator shall comply with the following requirements:

16.3.1. All service, maintenance and repairs of approved complete diesel-powered equipment packages shall be performed by mechanics that are trained and qualified in accordance with section 24 of this rule.

16.3.2. Service and maintenance of approved complete diesel-powered equipment packages shall be performed according to:

16.3.2.a. The specified routine maintenance schedule;

16.3.2.b. On-board performance and maintenance diagnostics readings;

16.3.2.c. Emissions test results; and

16.3.2.d. Component manufacturers recommendations.

W. Va. Code R. § 56-23-17 Records

17.1. A record shall be made of all emissions tests, preoperational examinations and maintenance and repairs of complete diesel-powered equipment packages. The records made pursuant to this section shall meet the requirements of this section.

17.2. The person performing the emissions test, examination, maintenance or repair shall certify by date, time, engine hour reading and signature that the emissions test, examination, maintenance or repair was made.

17.3. Records of emissions tests and examinations shall include the specific results of such tests and examination.

17.4. Records of maintenance and repairs shall include the work that was performed, any fluids or oil added, parts replaced or adjustments made and the results of any subsequently required emissions testing.

17.5. Records of preoperational examinations shall be retained for the previous one hundred-hour maintenance cycle.

17.6. Records of emissions tests, two hundred (200) hour maintenance tests and repairs shall be countersigned once each week by the certified mine electrician or mine foreman.

17.7. All records required by this section shall be retained for at least one year at a surface location at the mine and made available for inspection by the director, district mine inspector and by miners and their representatives.

W. Va. Code R. § 56-23-18 Duties of Operator

18.1. Prior to using a piece of diesel-powered equipment during a shift, an equipment operator shall conduct an examination as follows:

18.1.1. Check the exhaust emissions control and conditioning system components to determine that the components are in place and not damaged or leaking.

18.1.2. Assure that the equipment is clean and free of accumulations of combustibles.

18.1.3. Assure that the machine is loaded safely.

18.1.4. Check for external physical damage.

18.1.5. Check for loose or missing connections.

18.1.6. Check engine oil level.

18.1.7. Check transmission oil level.

18.1.8. Check other fluid levels, if applicable.

18.1.9. Check for hydraulic, coolant and oil leaks.

18.1.10. Check fan, water pump and other belts.

18.1.11. Check the fan for damage.

18.1.12. Check guards.

18.1.13. Check the fuel level.

18.1.14. Check for fuel leaks.

18.1.15. Comply with record keeping requirements pursuant to section 17 of this rule.

18.2. After the engine is started and warmed up, the equipment operator shall conduct an examination as follows:

18.2.1. Check all on-board engine performance and maintenance diagnostics system gauges for proper operation and in-range readings. The equipment operator shall immediately shut down the engine and notify the operator if the on-board readings indicate any of the following:

18.2.1.a. Intake restriction at full engine speed is greater than the manufacturers recommendation.

18.2.1.b. Exhaust restriction at full engine speed is greater than the manufacturers recommendation.

18.2.1.c. Coolant temperature is at or near two hundred twelve degrees Fahrenheit.

18.2.1.d. Low engine oil pressure.

18.2.1.e. High engine oil temperature.

18.2.2. Check safety features, including, but not limited to, the throttle, brakes, steering, lights and horn.

18.2.3. Comply with record keeping requirements pursuant to section 17 of this rule.

W. Va. Code R. § 56-23-19 Scheduled Maintenance

19.1. At intervals not exceeding two hundred (200) hours of engine operation, a qualified mechanic shall perform the following maintenance and make all necessary adjustments or repairs or remove the equipment from service:

19.1.1. Wash or steam-clean the equipment.

19.1.2. Check for and remove any accumulations of coal, coal dust or other combustible materials.

19.1.3. Check the equipment for damaged or missing components or other visible defects.

19.1.4. Conduct electrical and safety component inspections.

19.1.5. Replace engine oil and filter. An independent analysis shall be conducted of the engine oil.

19.1.6. Check the transmission oil level and add oil, if necessary.

19.1.7. Check hydraulic oil level and add oil, if necessary.

19.1.8. Check the engine coolant level and add coolant, if necessary.

19.1.9. Check all other fluid levels and add fluid, if necessary.

19.1.10. Check for oil, coolant and other fluid leaks.

19.1.11. Inspect the cooling fan, radiator and shroud. Remove any obstructions and make necessary repairs.

19.1.12. Check all belts. Tighten or replace, if necessary.

19.1.13. Check the battery and service as necessary.

19.1.14. Check the automatic fire suppression system.

19.1.15. Check the portable fire extinguisher.

19.1.16. Check the lights.

19.1.17. Check the warning devices.

19.1.18. With the engine operating, check and replace or repair the following:

19.1.18.a. Oil pressure.

19.1.18.b. Intake air restriction at full engine speed.

19.1.18.c. Exhaust gas restriction at full engine speed.

19.1.18.d. Exhaust flame arrestor.

19.1.18.e. All gauges and controls.

19.1.19. Conduct repeatable loaded engine-operating test in accordance with section 20 of this rule.

19.1.20. Evaluate and interpret the results of all of the above tests and examinations and make all necessary repairs or remove equipment from service.

19.1.21. Comply with recordkeeping requirements pursuant to section 17 of this rule.

W. Va. Code R. § 56-23-20 Emissions Monitoring and Control

20.1. Emissions for diesel-powered equipment shall be monitored and controlled as provided in this section.

20.2. When any diesel-powered machine first enters service at a mine, baseline emission values shall be determined by a qualified mechanic. Unless the director approves an alternate procedure, the qualified mechanic shall:

20.2.1. Verify that the seal on the engine fuel injector pump is in place and that the proper fuel pump is on the equipment.

20.2.2. Install a new clean intake air cleaner, measure and record the intake restriction pressure.

20.2.3. Check the level of engine oil.

20.2.4. Change the engine lubrication oil if not fresh.

20.2.5. Check the level of the transmission fluid.

20.2.6. Flush the exhaust system, if needed. Measure and record the exhaust back pressure. If exhaust gas backpressure is above that recommended by the manufacturer, then steps must be taken to bring the exhaust gas back pressure within the manufacturers recommended limit prior to beginning the test described in this section.

20.2.7. Test the brakes.

20.2.8. Place the equipment into an intake entry.

20.2.9. Set the brakes and chock the wheels.

20.2.10. Start the engine and allow it to warm up to operating temperature.

20.2.11. For mobile equipment, shift into the highest gear and put the engine at full throttle, or for stationary equipment, induce a load and put the engine at full throttle.

20.2.12. Start the CO sampler and measure and record CO levels every thirty seconds for ninety seconds.

20.2.13. Comply with recordkeeping requirements pursuant to section 17 of this rule.

20.2.14. An alternative to the testing provided in the aforementioned subsections may be developed by the director.

Note: CO baseline emissions must be representative of MSHAs approval data.

W. Va. Code R. § 56-23-21 Diagnostic Testing

21.1. At intervals not exceeding once every two hundred (200) hours of engine operation, a qualified mechanic shall perform equipment maintenance diagnostic testing of each piece of diesel-powered equipment in the mine. The qualified mechanic shall:

21.1.1. Verify the identification numbers on the equipment;

21.1.2. Check the level of the engine lubricating oil;

21.1.3. Check the level of the transmission fluid;

21.1.4. Set the brakes and chock the wheels;

21.1.5. Install the portable CO sampling device into the untreated exhaust port coupling;

21.1.6. Start the engine and allow it to warm up to operating temperature;

21.1.7. Check the intake restriction and the exhaust back pressure at high idle speed;

21.1.8. If the intake restriction is more than the manufacturers maximum recommended intake restriction, replace the intake filter with a clean one;

21.1.9. If exhaust gas backpressure is above that recommended by the manufacturer, then steps must be taken to bring the exhaust gas back pressure within the manufacturers recommended limit prior to beginning the test described in this section;

21.1.10. For mobile equipment, shift into the highest gear and put the engine at full throttle, or for stationary equipment, induce a load and put the engine at full throttle.

21.1.11. Start the CO sampler and record CO levels every thirty (30) seconds for ninety (90) seconds;

21.1.12. Install the portable CO sampling device into the treated exhaust port coupling and repeat steps 21.1.l and 21.1.k;

21.1.13. If the average CO reading for treated exhaust gas is greater than 100 ppm, the equipment has failed and must be serviced and retested before it is returned to regular service; and

21.1.14. Comply with recordkeeping requirements pursuant to section 17 of this rule.

21.1.15. An alternative to the testing provided in subsections 21.1.1 thru 21.1.15. may be developed and/or approved by the director.

W. Va. Code R. § 56-23-22 Training and General Requirements

22.1. To use diesel equipment in an underground mine the mine operator shall submit a training plan to the director for approval.

22.2. All training course instructors and all training plans required by this section and sections 23 and 24 of this rule shall be approved by the director. Operator training and qualification shall meet the requirements of this section.

22.3. Training shall be conducted in the basics of the operation of a diesel engine, federal and state regulations governing their use, company rules for safe operations, specific features of each piece of equipment and the ability to recognize problems and shall be provided to each equipment operator and the mine health and safety committee if one exists. This training shall be designed to bring every operator to a level of good understanding of diesel equipment operation. Each operator will be qualified by attending a minimum eight-hour course, including classroom training on diesel fundamentals and equipment-specific hands-on training on the job.

22.4. Upon successful completion of both training sessions, the operator shall be issued a Certificate of Qualification (MSHA 5000-23) that qualifies him or her 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.

22.5. The mine operator shall furnish all required training. The employees will suffer no loss of pay for attending training.

22.6. The minimum eight-hour training required by section 22.3 shall include instruction in the following classroom subjects:

22.6.1. Engine fundamentals, which shall include an introduction to the function of a diesel engine and recognition of all major components and their functions.

22.6.2. Diesel regulations, which shall include an introduction to federal and state regulations governing the use of diesel equipment.

22.6.3. Diesel emissions, which shall include an introduction to diesel emissions and their adverse health effects.

22.6.4. Factors that affect diesel emissions, which shall include a detailed presentation of engine faults and diesel fuel quality and their effect on emissions and the preventive actions that can be taken to minimize emissions levels.

22.6.5. Emissions control devices, which shall include a detailed presentation of the different emissions control devices employed to reduce emissions and details about actions the operator must take to keep the devices in working order.

22.6.6. Diagnostic techniques, which shall include a presentation of techniques that can be employed by the operator to assure the equipment is in safe operating condition and instruction about how to recognize and diagnose certain engine faults that may cause increases in emissions.

22.6.7. The preoperational inspection, which shall include a presentation of the purpose, benefits and requirements of the preoperational inspection.

22.6.8. Ventilation, which shall include an introduction to special ventilation requirements for areas where diesel-powered equipment will operate.

22.6.9. Fire suppression system, which shall include an introduction to the fire suppression system and its function and when and how to activate the fire suppression manually.

22.6.10. Operating rules, which shall include a detailed presentation of the driving rules, safe driving speeds, traffic control devices and equipment limitations.

22.6.11. Emergency procedures, which shall include discussion of emergency situations, such as fire, diesel fuel spills, component failure, loss of ventilation air and emergency escape procedures and discussion of the potential use of the diesel-powered vehicle as an emergency escape vehicle in case of a mine emergency situation.

22.6.12. Record keeping and reporting procedures, which shall include a presentation on required record keeping and reporting procedures for problems or unsafe conditions, high emissions levels and preoperational inspections made by the equipment operator.

W. Va. Code R. § 56-23-23 Equipment-Specific Training

23.1. Equipment-specific hands-on orientation training shall be 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. The following subjects shall be included in the training:

23.1.1. Equipment layout, which shall include familiarization with the layout of the equipment, the operators compartments and the controls.

23.1.2. Pre-operation inspection, which shall include familiarization with the pre-operation inspection procedure and review of specific details of the inspection and location of the components to be inspected.

23.1.3. Equipment limitations, which shall include instruction relating to equipment performance, speeds, capacities and blind areas.

23.1.4. Operating areas, which shall include instruction relating to areas in which the equipment may be operated.

23.1.5. Operation, which shall include familiarization with the controls, gauges and warning devices and safe operating limits of all indicating gauges.

23.1.6. Refueling procedure, which shall include familiarization with fuel handling, permissible refueling areas, spill prevention, cleanup and potential hazards from diesel fuel.

23.1.7. Emergency devices, which shall include instruction relating to the location and use of the fire extinguisher and fire suppression devices.

23.1.8. Driving practice, which shall include supervised operation of the equipment.

W. Va. Code R. § 56-23-24 Diesel Mechanic Training

24.1. Diesel mechanic training and qualification shall meet the requirements of this section.

24.2. Diesel mechanics shall be trained and qualified to perform maintenance, repairs and testing of the features of diesel equipment certified by MSHA and the director.

24.3. To be qualified, a diesel mechanic must successfully complete a minimum of sixteen hours of a training program approved by the director regarding the general function, operation, maintenance and testing of emissions control and conditioning components. The diesel mechanic must be qualified to perform these tasks on the specific machines used at the mine or mines where they are employed. Additional engine-specific training shall be provided to diesel mechanics in accordance with a plan approved by the director.

24.4. Annual retraining programs of eight (8) hours for diesel mechanics shall be required and approved by the director. The annual retraining shall include refresher training as well as new procedure and new technology training as necessary. Such training shall be separate from refresher training pursuant to MSHA regulations at 30 CFR Part 48 (relating to training and retraining of miners) and electrical training required by MSHA. The mine operator shall furnish all required training and refresher training. The employees will suffer no loss of pay for attending training and refresher training.

24.5. The minimum sixteen-hour diesel mechanic training programs shall be submitted for approval to the director and shall include training in the following minimum subject requirements:

24.5.1. Federal and state requirements regulating the use of diesel equipment.

24.5.2. Company policies and rules related to the use of diesel equipment.

24.5.3. Emissions control system design and component technical training.

24.5.4. On-board engine performance and maintenance diagnostics system design and component technical training.

24.5.5. Service and maintenance procedures and requirements for the emissions control systems.

24.5.6. Emissions testing procedures and evaluation and interpretation of test results.

24.5.7. Troubleshooting procedures for the emissions control systems.

24.5.8. Fire protection systems test and maintenance.

24.5.9. Fire and ignition sources and their control and elimination.

24.5.10. Fuel system maintenance and safe fueling procedures.

24.5.11. Intake air system design and components technical training and maintenance procedures.

24.5.12. Engine shutdown device tests and maintenance.

24.5.13. Special instructions regarding components, such as the fuel injection system, that shall only be repaired and adjusted by a qualified mechanic who has received special training and is authorized to make such repairs or adjustments by the component manufacturer or ASE certified diesel mechanic.

24.5.14. Instruction on record keeping requirements for maintenance procedures and emissions testing.

24.5.15. Other subjects determined by the director to be necessary to address specific health and safety needs.

24.6. Individuals successfully completing the approved sixteen (16) hour diesel mechanic training will be considered to be a trained operator providing he or she has received the necessary task training on the specific piece of diesel equipment.

W. Va. Code R. § 56-23-25 Operation of Diesel-Powered Equipment

25.1. In addition to other requirements of this rule, diesel-powered equipment shall be operated pursuant to the standards set forth in this rule.

25.2. All diesel-powered equipment shall be attended while in operation with the engine running in underground mines.

25.3. Unnecessary idling of diesel-powered equipment shall be prohibited.

25.4. All roadways where diesel-powered equipment is operated shall be maintained as free as practicable from bottom irregularities, debris and wet or muddy conditions that will affect control of the equipment.

25.5. Operating speeds shall be consistent with conditions of roadways, grades, clearances, visibility and traffic and type of equipment used.

25.6. Equipment operators shall have full control of the mobile equipment while it is in motion.

25.7. Traffic rules, including speed, signals and warning signs, shall be standardized at each mine and posted.

25.8. All diesel-powered equipment shall be maintained in a safe and healthful operating condition. Equipment in an unsafe or unhealthful condition or not maintained in accordance with the engine or emissions control operating specifications shall be removed from service immediately and shall not be returned to service until all necessary corrective actions have been taken.

W. Va. Code R. § 56-23-26 Diesel Inspectors; Employment; Training

26.1. The office of miners health, safety and training shall assign a diesel inspector in each region of the states four regional offices.

26.2. The diesel inspector may be assigned other duties as prescribed by the director.

26.3. The office of miners health, safety and training shall provide the diesel inspectors with specific training on this rule; also they shall train and equip the diesel inspectors with the proper equipment so that the inspectors may effectively test for diesel emissions and properly enforce this rule as prescribed by the director.

26.4. The diesel inspectors shall be trained in accordance with criteria as established and approved by the director.

26.5. After the implementation of this rule, the office of miners health, safety and training shall employ additional diesel inspectors as needed.

W. Va. Code R. § 56-23-27 Diesel Inspector -- Training Course

27.1. Training for diesel inspectors shall include, but is not limited to, the following:

27.1.1. Engine Fundamentals Components and Operation of a Diesel Engine.

27.1.2. Fuel Standards Fuel Requirements and Effect of Various Fuels on DPM Emissions.

27.1.3. Diesel Regulations State and Federal.

27.1.4. DPM Health Effects.

27.1.5. Factors that increase/decrease DPM emissions.

27.1.6. Emission Control Techniques Operation, Maintenance and Testing.

27.1.7. Diagnostics Instruments, Testing and Evaluation.

27.1.8. Inspection Techniques Enforcement.

27.1.9. Ventilation.

27.1.10. Fire Suppression Systems Operation, Testing and Maintenance.

27.1.11. Emergency Procedures Firefighting, Spills/Containment.

27.1.12. Fuel Handling/Storage.

27.1.13. Manufacturer Training.

27.1.14. Training Requirements Plans, Record Keeping.

W. Va. Code R. § 56-23-28 Operation of Underground Diesel Powered Electric Generators

28.1. While being operated, the diesel generator shall be vented directly to the return air course.

28.2. At least one person shall be present within sight and sound while the generator is in operation (engine running) and he/she shall have a multi-gas detector capable of detecting nitric oxide (NO), nitrogen dioxide (NO2) and carbon monoxide (CO).

28.3. All current state rules and statutes relating to the use of diesel-powered equipment and electricity remain in force.

28.4. Prior to the initial operation of the diesel generator underground, the operator shall give the director or his/her authorized representative ten (10) days written notice. In case of an emergency, the operator shall notify the director or his/her authorized representative as soon as possible prior to its initial use.

W. Va. Code R. § 56-23-29 Electrical Provisions for Diesel-Powered Electrical Generators

29.1. Electrical provisions for diesel-powered electrical generators used as an alternative to power centers for moving equipment in, out, and around the mine and to perform work in areas where permissible equipment is not required, must comply with the following:

29.1.1. A grounding resistor rated for the phase-to-phase voltage of the system must be provided to limit the ground-fault current to not more than 0.5 amperes.

29.1.1.a. The grounding resistor(s) must be located:

29.1.1.a.1. Between the wye-connected generator neutral and the generator frame or

29.1.1.a.2. Between the wye-connected generator neutral and the generator frame and between the wye-connected transformer secondary and the transformer frame when an isolation transformer(s) is used and the generator is supplying power to the other equipment or

29.1.1.a.3. Between the wye-connected generator neutral and the generator frame when an auto-transformer is used.

29.2. Each three-phase output circuit of the generator must be equipped with a sensitive ground fault relay. The protective relay must be set to cause the circuit interrupting device that supplies power to the primary windings of each transformer to trip and shut down the diesel engine when a phase-to-frame fault of not more than 90 milliamperes occurs.

29.3. The neutral grounding resistor shall be provided with backup ground fault protection that will shut down the diesel engine if a ground fault occurs with the neutral grounding resistor open.

29.4. Each three-phase output circuit that supplies power to equipment must be equipped with an instantaneous sensitive ground-fault relay that will cause its respective circuit interrupting device(s) to trip and cause shutdown of the diesel engine when a phase-to-frame fault occurs. The grounded-phase protection must be set at not more than 90 milliamps. Current transformers used for the ground-fault protection must be single window-type and must be installed to encircle all three phase conductors. Equipment safety grounding conductors must not pass through or be connected in series with ground-fault current transformers.

29.5. Each three-phase circuit interrupting device must be provided with a means to provide short-circuit, overcurrent, grounded-phase, under-voltage, and ground wire monitoring protection. The instantaneous only trip unit for the circuit interrupting device(s) in use must be adjusted to trip at not more than seventy-five percent (75%) of the minimum available short circuit current at the point where the portable cable enters the equipment, specified in Table 56-23A found at the end of this rule.

29.6. The equipment portable cable length(s) must not exceed the length(s) specified in Table 56-23B found at the end of this rule.

29.7. Permanent label(s) listing the maximum circuit interrupting device setting(s) and maximum portable cable length(s) must be installed on each instantaneous trip unit or be maintained near each three-phase circuit interrupting device. The permanent label(s) must be maintained legibly.

29.8. The circuit interrupting device that supplies three-phase power circuit(s) to the equipment being powered must be limited to the use of only one circuit interrupting device at a time when equipment is being moved in, out, and around the mine.

29.9. The grounding system must include an MSHA-accepted ground wire monitor system to assure that grounding conductor is connected to the frames of all equipment and to the frame of the generator. Double grounding will not be accepted in lieu of ground monitoring.

29.10. All trailing cables extending from the generator to equipment must comply with the design of trailing cables for medium-voltage circuits.

29.11. Trailing cables for medium-voltage circuits shall include grounding conductors, a ground check conductor, and grounded metallic shields around each power conductor or a ground metallic shield over the assembly, except that on equipment employing cable reels, cables without shields may be used if the insulation is rated 2,000 volts or more.

29.12. A strain relief device must be provided on each end of the trailing cables that extends between the generator and the piece of equipment being powered.

29.13. Prior to moving each piece of equipment or performing work, a functional test of each ground fault and ground wire monitor system must be performed by a qualified electrician. The ground-fault circuit must be tested without subjecting the circuit to an actual grounded phase condition. A record of each test must be maintained and made available to authorized representatives of the director and to the miners in such mine.

29.14. The diesel generator must be provided with power quality monitoring. This shall include volt meter(s), ammeters and a frequency meter to determine the power quality of all three phases.

Table 56-23A Conductor Size AWG or MGM Maximum Allowable Circuit Breaker Instantaneous Setting (Ampheres) 14 50 12 75 10 150 8 200 6 300 4 500 3 600 2 800 1 1,000 1/0 1,250 2/0 1,500 3/0 2,000 4/0 2,500 250 2,500 300 2,500 350 2,500 400 2,500 450 2,500 500 2,500 Table 56-23B Specifications for Portable Cables Longer than 500 Feet Conductor Size -- AWG or MCM Max. Allowable Length (Feet)

Normal Ampacity at 60 C. Copper Temperature (40 C. Ambient)

Resistance at 60 C. Copper Temperature (Ohms) 6 550 50 0.512 4 600 70 .353 3 650 80 .302 2 700 95 .258 1 750 110 .220 1/0 800 130 .185 2/0 850 150 .157 3/0 900 175 .130 4/0 1,000 200 .116 250 1,000 220 .098 300 1,000 240 .082 350 1,000 260 .070 400 1,000 280 .061 450 1,000 300 .054 500 1,000 320 .050