Code of Virginia

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Code of Virginia
Title 45.2. Mines, Minerals, and Energy
Chapter 5. Coal Mine Safety Act
5/26/2022

Article 8. Enforcement and Penalties; Reports of Violations.

§ 45.2-568. (Effective October 1, 2021) Notices of violations.

A. If the Director, the Chief, or a mine inspector has reasonable cause to believe that a violation of the Act has occurred, he shall with reasonable promptness issue a notice of violation to the person responsible for the violation. Each notice of violation shall be in writing, shall describe with particularity the nature of the violation, including a reference to the provision of the Act or the appropriate regulation violated, and shall include an order of abatement and set a reasonable time for abatement of the violation.

B. A copy of the notice of violation shall be delivered to the operator or his agent or the mine foreman.

C. Upon a finding by the mine inspector of the completion of the action required to abate such violation, the Director, the Chief, or the mine inspector shall issue a notice of correction, a copy of which shall be delivered as provided in subsection B.

D. The notice of violation shall be deemed the final order of the Department and shall not be subject to review by any court or agency unless within 20 days following its issuance the person to whom the notice of violation was issued appeals its issuance by notifying the Department in writing that he intends to contest its issuance. The Department shall conduct informal conference or consultation proceedings, presided over by the Chief, pursuant to § 2.2-4019, unless the person and the Department agree to waive such a conference or proceeding to go directly to a formal hearing. If such a conference or proceeding is waived, or if it fails to dispose of the case by consent, the Department shall conduct a formal hearing pursuant to § 2.2-4020. The formal hearing shall be presided over by a hearing officer pursuant to § 2.2-4024, who shall recommend findings and an initial decision, which shall be subject to review and approval by the Director. Any party aggrieved by and claiming unlawfulness of such decision is entitled to judicial review pursuant to Article 5 (§ 2.2-4025 et seq.) of the Administrative Process Act.

E. If it is finally determined that a notice of violation was not issued in accordance with the provisions of this section, the notice of violation shall be vacated and the improperly issued notice of violation shall not be used to the detriment of the person or the operator to whom it was issued.

Code 1950, §§ 45-4.1, 45-9, 45-12, 45-74; 1954, c. 191; 1966, c. 594, § 45.1-5; 1976, c. 598; 1978, c. 120; 1984, c. 236; 1985, c. 448; 1987, c. 470; 1990, c. 963; 1994, c. 28, § 45.1-161.90; 1997, c. 390; 2021, Sp. Sess. I, c. 387.

§ 45.2-569. (Effective October 1, 2021) Closure orders.

A. The Director, the Chief, or a mine inspector shall issue a closure order requiring any mine or section thereof cleared of all persons, or equipment removed from use, and refusing further entry into the mine by all persons except those necessary to correct or eliminate a hazardous condition, when (i) a violation of the Act has occurred that creates an imminent danger to the life or health of persons in the mine; (ii) a mine fire, mine explosion, or other serious accident has occurred at the mine, as necessary to preserve the scene of such accident during the investigation of the accident; (iii) a mine is operating without a license in violation of § 45.2-535; or (iv) an operator to whom a notice of violation was issued has failed to abate the violation cited therein within the time period provided in such notice for its abatement; however, a closure order shall not be issued for failure to abate a violation during the pendency of an administrative appeal of the issuance of the notice of violation as provided in subsection D of § 45.2-568.

B. A technical specialist may issue a closure order upon discovering a violation creating an imminent danger.

C. One copy of a closure order shall be delivered to the operator of the mine or his agent or the mine foreman.

D. Upon a finding by the mine inspector of abatement of the violation creating the hazardous condition pursuant to which a closure order has been issued as provided in clause (i) of subsection A; cessation of the need to preserve an accident scene as provided in clause (ii) of subsection A; the issuance of a license for the mine if the closure order was issued as provided in clause (iii) of subsection A; or abatement of the violation for which the notice of violation was issued as provided in clause (iv) of subsection A, the Director, the Chief, or a mine inspector shall issue a notice of correction, a copy of which shall be delivered as provided in subsection C.

E. The issuance of a closure order shall constitute a final order of the Department, and the owner or operator of the mine shall not be entitled to administrative review of such decision. The owner or operator of any mine or part thereof for which a closure order has been issued may, within 10 days following the issuance of the order, bring a civil action in the circuit court of the county or city in which the mine, or the greater portion thereof, is located for review of the decision. The commencement of such a proceeding shall not, unless specifically ordered by the court, operate as a stay of the closure order. The court shall promptly hear and determine the matters raised by the owner or operator. In any such action, the court shall receive the records of the Department with respect to the issuance of the order and any additional evidence at the request of any party. In any proceeding under this section, the Attorney General or the attorney for the Commonwealth for the jurisdiction where the mine is located, upon the request of the Director, shall represent the Department.

F. The court shall vacate the closure order if the preponderance of the evidence establishes that the order was not issued in accordance with the provisions of this section.

G. If it is finally determined that a closure order was issued not in accordance with the provisions of this section, the closure order shall be vacated and the improperly issued closure order shall not be used to the detriment of the owner or operator of the mine for which it was issued.

Code 1950, §§ 45-4.1, 45-9, 45-12, 45-74; 1954, c. 191; 1966, c. 594, § 45.1-5; 1976, c. 598; 1978, c. 120; 1984, c. 236; 1985, c. 448; 1987, c. 470; 1990, c. 963; 1994, c. 28, § 45.1-161.91; 1996, c. 774; 2021, Sp. Sess. I, c. 387.

§ 45.2-570. (Effective October 1, 2021) Tolling of time for abating violations.

The period of time specified in a notice of violation for the abatement of the violation shall not begin to run until (i) the final decision of the Department is issued, if an administrative appeal of its issuance is pursued, or (ii) the final order of the circuit court is rendered, if an appeal of its issuance is taken to circuit court and if such appeal pursuant to clause (i) or (ii) was undertaken in good faith and not solely for delay or avoidance of penalties.

1994, c. 28, § 45.1-161.92; 2021, Sp. Sess. I, c. 387.

§ 45.2-571. (Effective October 1, 2021) Injunctive relief.

A. Any person violating or failing, neglecting, or refusing to obey any closure order may be compelled in a proceeding instituted by the Director in any appropriate circuit court to obey such order and to comply with such order by injunction or other appropriate relief.

B. Any person failing to abate any violation of the Act that has been cited in a notice of violation within the time period provided in such notice for its abatement may be compelled in a proceeding instituted by the Director in any appropriate circuit court to abate such violation as provided in such notice and to cease the operation of the mine at which such violation exists until the violation has been abated, by injunction or other appropriate remedy.

C. The Director may file a bill of complaint with any appropriate circuit court asking the court to temporarily or permanently enjoin a person from operating a mine in the Commonwealth, to be granted upon finding by a preponderance of the evidence that (i) a history of noncompliance at the mine operated by the person demonstrates that he is not able or willing to operate a mine in compliance with the provisions of the Act or (ii) a history of the issuance of closure orders for the mine operated by the person demonstrates that he is not able or willing to operate a mine in compliance with the provisions of the Act.

Code 1950, § 45-8, 45-84; 1954, c. 191; 1966, c. 594, § 45.1-104; 1972, c. 784; 1974, c. 323; 1975, c. 520; 1978, c. 120; 1982, c. 118; 1990, c. 963; 1994, c. 28, § 45.1-161.93; 2021, Sp. Sess. I, c. 387.

§ 45.2-572. (Effective October 1, 2021) Violations; penalty.

Any person who willfully violates any provision of the Act or any regulation adopted pursuant to the Act, unless otherwise specified in the Act, is guilty of a Class 1 misdemeanor.

Code 1950, § 45-17; 1954, c. 191; 1966, c. 594, § 45.1-105; 1975, c. 520; 1978, c. 118; 1980, c. 388; 1994, c. 28, § 45.1-161.94; 2021, Sp. Sess. I, c. 387.

§ 45.2-573. (Effective October 1, 2021) Prosecution of violations.

A. It is the duty of every attorney for the Commonwealth to whom the Director or his authorized representative has reported any violation of the Act or on his own initiative to cause proceedings to be prosecuted in such case.

B. If the attorney for the Commonwealth declines to cause proceedings to be prosecuted in such case, the Director or the Chief may request the Attorney General to institute proceedings for any violation of the Act on behalf of the Commonwealth; however, such action shall not preclude the Director or the Chief from pursuing any other applicable statutory procedure. Upon receiving such a request from the Director or the Chief, the Attorney General may institute actions and proceedings for violations described in the request.

Code 1950, § 45-17; 1954, c. 191; 1966, c. 594, § 45.1-105; 1975, c. 520; 1978, c. 118; 1980, c. 388; 1994, c. 28, § 45.1-161.95; 2021, Sp. Sess. I, c. 387.

§ 45.2-574. (Effective October 1, 2021) Fees and costs.

No fees or costs shall be charged to the Commonwealth by a court or any officer for or in connection with the filing of any pleading or other papers in any action authorized by this article.

1994, c. 28, § 45.1-161.96; 2021, Sp. Sess. I, c. 387.

§ 45.2-575. (Effective October 1, 2021) Reports of violations.

A. The operator of each mine or his agent shall deliver a copy of the Act to each miner upon the commencement of his employment at the mine, unless the miner is already in possession of a copy.

B. Any person aware of a violation of the Act may report the violation to a mine inspector or to any other employee of the Department, in person, in writing, or by telephone call, at the mine, at an office of the Department, or at the mine inspector's residence.

C. The operator of each mine or his agent shall display on a sign placed at the mine office, at the bath house, and on a bulletin board at the mine site a notice containing the office addresses and office and home telephone numbers of mine inspectors and other Department personnel for the purpose of reporting any violation of the Act.

D. The Department shall keep a record, on a form prepared for such purpose, of every alleged violation of the Act that is reported and the results of any investigation. The Department shall give a copy of the complaint form, with the identity of the person making the report and that of any individual identified in the alleged violation being omitted or deleted, to the operator of the mine or his agent. The Department shall not disclose the identity of any person who reports an alleged violation to the owner or operator of the mine or his agent or to any other person or entity. Information regarding the identity of the person reporting the violation shall be exempt from disclosure under the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

1994, c. 28, § 45.1-161.97; 2005, c. 3; 2021, Sp. Sess. I, c. 387.