SB 635 — Relating generally to coal mining activities

(e) (b) The provisions of this section shall apply as follows:

to all surface mining permit applications granted after July 1, 2018.

(1) To all surface mining permits granted after June 11, 1999;

and (2) At the first renewal date of all previously issued permits:

Provided, That the permittee shall be afforded ninety days from said date to comply with the provisions of this section.

(c) TheIn operatordetermining shallthe benature required to prepare and submitextent toof the officeneeded thecommunity informationassets, setthe forthoffice inshall thisconsider subsectionat asleast follows:the following:

(1) A map of the area for which a permit under article three, chapter twenty-two of this code is being sought or has been obtained;

(2) The names of the surface and mineral owners of the property to be mined pursuant to the permit;

and (3) A statement of the post-mining land use for all land which may be affected by the mining operations.

(d) (c) In determining the nature and extent of the needed community assets, the office shall consider at least the following:

(a) The office shall determine the land and infrastructure needs in the general area of the surface mining operations.operations for which it makes the determination authorized in §5B-2A-6 of this code.

for which it makes the determination authorized in §5B-2A-6 of this code.

(i)(A) The property use is compatible with adjacent land uses;

(ii)(B) theThe use satisfies the relevant county or development or redevelopment authority’s anticipated need and market use;

(iii)(C) theThe property has in place necessary infrastructure components needed to achieve the anticipated use;

(iv)(D) theThe use is supported by all other appropriate public agencies;

(v)(E) theThe property is eligible for bond release in accordance with section§22-3-23 twenty-three, article three, chapter twenty-two of this code;

and (vi)(F) theThe use is feasible.

Required infrastructure component standards require approval of the relevant county commission, commissions or other county governing body before such standards are accepted.

County commission or other county governing body approval may be rendered only after a reasonable public comment period;

(A)  The property use is compatible with adjacent land uses;

(B)  The use satisfies the relevant county or development or redevelopment authority’s anticipated need and market use;

(C)  The property has in place necessary infrastructure components needed to achieve the anticipated use;

(D)  The use is supported by all other appropriate public agencies;

(E)  The property is eligible for bond release in accordance with §22-3-23 of this code;

and (F)  The use is feasible.

(5) The provisions of this subsection shall not take effect until legislative rules are promulgated pursuant to paragraph (C), subdivision (1), subsection (c), section twenty-three, article three, chapter twenty-two of this code governing bond releases which assure sound future maintenance by the local or regional economic development, redevelopment, or planning agencies.

Chapter 11.

Taxation.

ARTICLE 28.

Post-Coal minE Site Business Credit.

§11-28-1.

Definitions.

For purposes of this article:

“Business entity” or “person” means an individual, firm, sole proprietorship, partnership, corporation, association, or other entity entitled to a post-coal mine site business credit.

“Coal mining operation” means the business of developing, producing, preparing, or loading bituminous coal, subbituminous coal, anthracite, or lignite.

“Post-coal mine site” means property that has remained undeveloped for business purposes, subsequent to coal mining operations on the property within the bonded area of the last issued coal mine permit.

“Principal place of business” means the physical location from which the entity’s direction, control, and coordination of the operations of the business are primarily exercised, with consideration given, but not limited to:

(1) The physical location at which the primary executive and administrative headquarters of the entity is located;

and (2) From which the management of overall operations of the entity is directed.

“Undeveloped for business purposes” means land has been previously used for coal mining operations and has not been built or developed for use for other activities in the commercial or manufacturing sectors of the economy.

§11-28-2.

Eligibility for credit.

For those tax years beginning on or after January 1, 2020, a business entity will be allowed a credit against certain taxes imposed by this chapter, as described in §11-28-3 of this code, if the business entity meets the following requirements:

(1) The entity is a corporation, small business corporation, limited liability company, partnership, or unincorporated business entity as defined in this code that also has a principal place of business in the state;

(2) The entity employs at the post-coal mine site a minimum of 10 full-time (32 hours a week or more) employees;

and (3) The entity’s principal place of business is located on a post-coal mine site within this state.

§11-28-3.

Application of credit.

(a) Amount of credit.

— For those tax years beginning on or after January 1, 2020, an eligible business entity will be allowed a tax credit in the amount of 50 percent of that entity’s capital expenditures (as defined in Section 263 of the United States Internal Revenue Code of 1986, as amended) at the post-coal mine site for the first five taxable years during which the entity’s principal place of business is located on the post-coal mine site within this state.

The dollar amount of the credit claimed by an eligible business entity may not exceed the amount of 50 percent of the entity’s state income tax for a single year.

(b) Application of annual credit allowance.

— The credit created by this article is allowed as a credit against the taxpayer’s state tax liability applied as provided in subdivisions (1) and (2) of this subsection, and in that order.

(1) Corporation net income taxes.

— Any credit is first applied to reduce the taxes imposed by §11-24-1 et seq.

of this code for the taxable year.

(2) Personal income taxes.

— After application of §11-28-3(b)(1) of this code, any unused credit is next applied as follows:

(A) If the person making the qualified investment is an electing small business corporation (as defined in Section 1361 of the United States Internal Revenue Code of 1986, as amended), a partnership or a limited liability company that is treated as a partnership for federal income tax purposes, then any unused credit (after application of §11-28-3(b)(1) of this code) is allowed as a credit against the taxes imposed by §11-21-1 et seq.

of this code on the income from business or other activity subject to tax under §11-23-1 et seq.

of this code.

(B) Electing small business corporations, limited liability companies, partnerships, and other unincorporated organizations shall allocate the credit allowed by this article among its members in the same manner as profits and losses are allocated for the taxable year.

(3) A credit is not allowed under this section against any employer withholding taxes imposed by §11-21-1 et seq.

of this code.

(c) Unused credit.

— A carryback to a prior taxable year is not allowed for the amount of any unused portion of any annual credit allowance.

If the amount of the allowable credit exceeds the taxpayer’s tax liability for the taxable year, the amount which exceeds the tax liability may be carried over and applied as a credit against the tax liability of the taxpayer pursuant to §11-21-1 et seq.

or §11-24-1 et seq.

of this code for each of the next 10 taxable years following the year of creation of the tax credit unless sooner used.

(d) Eligibility requirements.

— Those businesses that benefit from other state economic development programs or incentives that result in a reduction of their income tax liability due shall not be eligible for this tax credit.

(e) Rule-making authority.

— The State Tax Division shall promulgate emergency rules pursuant to the provisions of §29A-3-15 of this code.

These rules shall include, at a minimum, forms for use in claiming the credit authorized in this article, administration of the credit authorized in this article, and any other matter seen necessary by the State Tax Division for the administration of this article.

(5) Design, locate, construct, operate, maintain, enlarge, modify, and remove or abandon, in accordance with the standards and criteria developed pursuant to §22-3-13 of this article code, all existing and new coal mine waste piles consisting of mine wastes, tailings, coal processing wastes, and solid wastes and used either temporarily or permanently as dams or embankments;

(6) Establish on regraded areas and all other disturbed areas a diverse and permanent vegetative cover capable of self-regeneration and plant succession and at least equal in extent of cover to the natural vegetation of the area within the time period prescribed in §22-3-13(b)(20) of this article code;

(e) The secretary shall promulgate for review and consideration by the West Virginia Legislature during the regular session of the Legislature, 2020, revisions to legislative rules (38 CSR 2) pertaining to surface owner protection from material damage due to subsidence under this article. article. The secretary shall specifically consider adoption of the federal standards codified at 30 C.F.R.

The secretary shall specifically consider adoption of the federal standards codified at 30 C.F.R.

of this code,code to establish a schedule of permit fees to be assessed annually upon each person holding a state water pollution control permit or national pollutant discharge elimination system permit issued pursuant to this article except for permits held by surface coal mining operations as defined in §22-3-1 et seq.

of this chapter code.

Provided, That no person holding a permit for a home aerator of six hundred 600 gallons and under shall be required to pay an annual permit fee.

The secretary may declare any permit issued pursuant to this article void when the annual permit fee is more than ninety90 days past due pursuant to the rules promulgated under this section.

Five hundred dollars $500 for the fiscal year beginning on July 1, 2002, and $1,000 for each fiscal year thereafter. thereafter. For all other categories of permitting actions pursuant to this article related to surface coal mining operations, the secretary shall propose for promulgation legislative rules in accordance with the provisions of §29A-1-1 et seq.

For all other categories of permitting actions pursuant to this article related to surface coal mining operations, the secretary shall propose for promulgation legislative rules in accordance with the provisions of §29A-1-1 et seq.

THeThe Aboveground Storage Tank Act.

(1) “Aboveground storage tank” or “tank” or “AST” means a device made to contain an accumulation of more than one thousand three hundred twenty 1,320 gallons of fluids that are liquid at standard temperature and pressure, which is constructed primarily of nonearthen materials, including concrete, steel, plastic, or fiberglass reinforced plastic, which provide structural support, more than ninety percent 90 percent of the capacity of which is above the surface of the ground, and includes all ancillary pipes and dispensing systems up to the first point of isolation.

The term includes stationary devices which are permanently affixed, and mobile devices which remain in one location on a continuous basis for three hundred sixty-five 365 or more days.

§§20101-2015,§20101-2015, as amended, including, but not limited to, federal regulations promulgated thereunder at 49 C.

Parts §§172, 173, or 174;

1,1 et seq.

or subject to other federal law governing the transportation of hazardous materials.;materials;

(G) Except when located in a zone of critical concern, a device located on a farm, the contents of which are used exclusively for farm purposes and not for commercial distribution.;distribution;

(M) Devices having a capacity of two210 hundred ten barrels or less, containing brine water or other fluids produced in connection with hydrocarbon production activities, that are not located in a zone of critical concern;

(A) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five 25 individuals per day for at least sixty 60 days per year, or which has at least fifteen 15 service connections, and shall include:

(13) “Regulated level 1 aboveground storage tank” or “level 1 regulated tank” means:

(14) “Regulated level 2 aboveground storage tank” or “level 2 regulated tank” means an AST that is located within a zone of peripheral concern that is not a level 1 regulated tank.

Earthen dikes and similar containment structures must be designed and constructed to contain, for a minimum of seventy-two 72 hours, fluid that escapes from a tank.

(19) “Source water protection area” for a public groundwater supply source is the area within an aquifer that supplies water to a public water supply well within a five-year time of travel,travel and is determined by the mathematical calculation of the locations from which a drop of water placed at the edge of the protection area would theoretically take five years to reach the well.

The width of the zone of critical concern is one thousand 1,000 feet measured horizontally from each bank of the principal stream and five hundred 500 feet measured horizontally from each bank of the tributaries draining into the principal stream.

The length of the zone of peripheral concern is based on an additional five-hour time of travel of water in the streams beyond the perimeter of the zone of critical concern, which creates a protection zone of ten 10 hours above the water intake.

The width of the zone of peripheral concern is one thousand 1,000 feet measured horizontally from each bank of the principal stream and five hundred 500 feet measured horizontally from each bank of the tributaries draining into the principal stream.

(3) Any miner who knowingly violates any health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter is subject to a civil penalty assessed by the director under subdivision (4) of this subsection which shall not be more than $250 for each occurrence of the violation. violation. Any miner issued a violation under this subsection shall either appeal the violation or pay the civil penalty within 30 days after receipt of the violation.  Any violation not appealed or paid within days shall become delinquent.

Any miner issued a violation under this subsection shall either appeal the violation or pay the civil penalty within 30 days after receipt of the violation.

Any violation not appealed or paid within 30 days shall become delinquent.

(b) (1) Any operator who knowingly violates a health or safety provision of this chapter or health or safety rule promulgated pursuant to this chapter, or knowingly violates or fails or refuses to comply with any order issued under §22A-1-15 of this article code, or any order incorporated in a final decision issued under this article, except an order incorporated in a decision under §22A-1-22(a) or §22A-1-22(b) of this article code, shall be assessed a civil penalty by the director under subdivision (5), subsection (a) of this section of not more than $5,000 and for a second or subsequent violation assessed a civil penalty of not more than $10,000, unless the director determines that it is appropriate to impose a special assessment for the violation, pursuant to the provisions of subdivision (2) of this subsection.

(c) Whenever a corporate operator knowingly violates a health or safety provision of this chapter or health or safety rules promulgated pursuant to this chapter, or knowingly violates or fails or refuses to comply with any order issued under this law or any order incorporated in a final decision issued under this law, except an order incorporated in a decision issued under §22A-1-22(a) or §22A-1-22(b) of this article code, any director, officer, or agent of the corporation who knowingly authorized, ordered or carried out the violation, failure or refusal is subject to the same civil penalties that may be imposed upon a person under subsections (a) and (b) of this section.

(f) Any person who willfully violates any safety standard pursuant to this chapter or a rule promulgated thereunder that causes a fatality or who willfully orders or carries out such violation that causes a fatality is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or confined in a state correctional facility not less than one year and not more than five years, or both fined and imprisoned confined.

(a) (a) The operator shall provide mine rescue coverage at each active underground mine.

(3) A West Virginia Office of Miners’ Health, Safety, and Training Mine Rescue Team may shall serve as a second or backup team for mines within the state and qualify as one of the two teams required under subdivision (1) of this subsection and in accordance with 30 CFR, Part 49.20(4) for all mines with no backup team available within a one-hour drive to the mine.

The operator shall contact the office and obtain the state’s agreement to serve as a backup team in the form of a written notification signed by the director and this notification shall be kept posted at the mine notify them of the need for mine rescue services beginning July 1, 2019.

To ensure adequate rescue coverage for all underground mines, no mine rescue station may provide coverage for more than seventy 70 mines within the two-hour ground travel limit as defined in this subsection.

(i) Upon completion of the initial training, all mine rescue team members shall receive at least forty 40 hours of refresher training annually.

(3) (3) The mine operator shall provide two-way communication and a lifeline or its equivalent at each fresh air base for all mine rescue or recovery teams and no mine rescue team member shall advance more than 1,000 feet inby the fresh air base:

Provided, however, That the mine operator shall provide a lifeline or its equivalent equivalent in each fresh air base for all mine rescue or recovery teams.

(4) A rescue or recovery team shall immediately return to the fresh air base when the atmospheric pressure of any member’s breathing apparatus depletes to sixty 60 atmospheres, or its equivalent.

The communication system shall be at least one thousand 1,000 feet in length;

A person trained in the use and care of breathing apparatuses shall inspect and test the apparatuses at intervals not exceeding thirty 30 days and shall certify by signature and date that the inspections and tests were done.

(o) When an authorized representative finds a violation of any of the mine rescue requirements, the representative shall take appropriate corrective action in accordance with §22A-1-15 of this article code.

The operators shall have twenty-four24 hours to submit to the director a revised mine rescue program.

(q) Every operator of an underground mine shall develop and adopt a mine rescue program for submission to the director within thirty 30 days of the effective date of this statute:

(a) If any injury or death shall occur to any person who has entered any mine, whether active workingsworkings, inactive workings, or abandoned workings, without permission, neither:

In the event of an unauthorized entry by any person or persons into any mine whether active workingsworkings, inactive workings, or abandoned workings, neither the owner of that mine or property, nor any other person, organization, or entity involved in any rescue or attempted rescue of such person, may be held liable for any violation of any environmental regulation, if such violation occurred as part of any rescue efforts.

 (a) Every employer of certified persons, as defined in §22A-1-2 of this chapter code, shall implement a substance abuse screening policy and program that shall, at a minimum, include:

(1) A preemployment, ten 10-panel urine test for the following and any other substances as set out in rules adopted by the Office of Miners’ Health, Safety, and Training:

(c) (c) 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.

(c) (d) (1) Every employer shall notify the director, on a form prescribed by the director, within seven days of any of the following:

(A) A Any positive drug or alcohol test of a certified person.,person. whether it be a preemployment test, random test, reasonable suspicion test or post-accident test.

(A) A Any positive drug or alcohol test of a certified person,person. whether it be a preemployment test, random test, reasonable suspicion test or post-accident test.

(4) Notice 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 §22A-1-2 of this article code.

(d) (e) Suspension or revocation of a certified person’s certificate as a miner or other miner specialty in another jurisdiction by the applicable regulatory or licensing authority for substance abuse-related matters shall result in the director’s immediately and temporarily suspending the certified person’s West Virginia certificate until such time as the certified person’s certification is reinstated in the other jurisdiction.

(e) (f) The provisions of this article shall not be construed to preclude an employer from developing or maintaining a drug and alcohol abuse policy, testing program, or substance abuse program that exceeds the minimum requirements set forth in this section.

(a) Any hearing conducted after the temporary suspension of a certified person’s certificate pursuant to this article,article shall be conducted within sixty 60 days of the temporary suspension.

The Board of Appeals shall make every effort to hold the hearing within forty 40 days of the temporary suspension.

(b) All hearings of the Board of Appeals pursuant to this section shall be conducted in accordance with the provisions of §22A-1-31 of this chaptercode. code.  In addition to the rules and procedures in §22A-1-31 of this chapter code in hearings under this section, the Board of Appeals may accept as evidence a notarized affidavit of drug testing procedures and results from a Medical Review Officer (MRO) in lieu of live testimony by the MRO.  If the Board of Appeals desires testimony in lieu of a notarized affidavit, the MRO may testify under oath telephonically or by an Internet-based program in lieu of physically attending the hearing.  The Board of Appeals may suspend the certificate or certificates of a certified person for violation of this article or for any other violation of this chapter pertaining to substance abuse.

In addition to the rules and procedures in §22A-1-31 of this code in hearings under this section, the Board of Appeals may accept as evidence a notarized affidavit of drug testing procedures and results from a Medical Review Officer (MRO) in lieu of live testimony by the MRO.

If the Board of Appeals desires testimony in lieu of a notarized affidavit, the MRO may testify under oath telephonically or by an Internet-based program in lieu of physically attending the hearing.

The Board of Appeals may suspend the certificate or certificates of a certified person for violation of this article or for any other violation of this chapter pertaining to substance abuse.

of this code to establish the disciplinary actions referenced in this section following the receipt of recommendations from the Board of Coal Mine Health and Safety following completion of the study required pursuant to §22A-6-14 of this chapter code.

(c) No person whose certification is suspended or revoked under this section may perform any duties under any other certification issued under this chapter,chapter during the period of the suspension imposed by the Board of Appeals. Appeals. For all miners determined to have a positive drug or alcohol test as determined pursuant to the provisions of this article, the board shall suspend the miner’s certification card(s) for a minimum of six months from the date of the drug test.  This six-month minimum suspension shall also apply to miners who enter into a treatment program after testing positive in a drug test administered pursuant to the provisions of this article and are placed under probationary treatment and testing agreements by the board.

For all miners determined to have a positive drug or alcohol test as determined pursuant to the provisions of this article, the board shall suspend the miner’s certification card(s) for a minimum of six months from the date of the drug test.

This six-month minimum suspension shall also apply to miners who enter into a treatment program after testing positive in a drug test administered pursuant to the provisions of this article and are placed under probationary treatment and testing agreements by the board.

 (a)(a) A mine operator shall submitgive the director a detailedcopy ventilationof the United States Department of Labor’s Mine Safety and Health Administration (MSHA)-approved plan and any addenda toas soon as the directoroperator forreceives reviewthe andapproval comment.from MSHA.

The mine operator shall review the plan with the director and address concerns to the extent practicable.

The operator shall deliver to the miners’ representative employed by the operator at the mine, if any, a copy of the operator’s proposed annual ventilation plan at least 10 days prior to the date of submission.

The miners’ representative, if any, shall be afforded the opportunity to submit written comments to the operator prior to such submission;

in addition, the miners’ representative, if any, may submit written comments to the director.

The director shall submit any concern that is not addressed to the United States Department of Labor - Mine Safety and Health Administration (MSHA) through comments to the plan.

The mine operator shall provide a copy of the plan to the director 10 days prior to the submittal of the plan to MSHA.

Provided, That the MSHA-approved plan shall comply with all provisions of state mining law as set forth in statethis code or code of state rules.

 (b)(b) (a)In The A mine operator shall give the directorevent a copy of thean MSHAunforeseen Unitedsituation Statesrequiring Departmentimmediate ofaction Labor’son Minea Safety and Health Administration (MSHA)-approved plan andrevision, any addenda as soon as the operator receivesshall submit the approvalproposed fromrevision MSHA. to The MSHA-approved plan shall serve as the state-approveddirector plan: and Provided, That the MSHA-approvedminers’ planrepresentative, shallif complyany, withemployed allby provisionsthe ofoperator stateat miningthe lawmine aswhen setthe forthproposed inrevision thisis codesubmitted orto stateMSHA. rules.

(c) (b) In the event of an unforeseen situation requiring immediate action on a plan revision, the operator shall submit the proposed revision to the director and the miners’ representative, if any, employed by the operator at the mine when the proposed revision is submitted to MSHA.

(d) (c) Upon approval by MSHA, the plan is enforceable by the director.

 (a) The Office of Miners’ Health, Safety, and Training shall prescribe and establish a course of instruction in mine safety and particularly in dangers incident to employment in mines and in mining laws and rules, which course of instruction shall be successfully completed within twelve12 weeks after any person is first employed as a miner.

In addition to other enforcement actions available to the director, upon a finding by the director of the existence of a pattern of conduct creating a hazardous condition at a mine, the director shall notify the Board of Miners’ Training, Education and Certification Board of Coal Mine Health and Safety, which shall cause additional training to occur at the mine addressing such safety issue or issues identified by the director, pursuant to §22A-7-1 et seq.

of this chaptercode. code.  The Office of Miners’ Health, Safety, and Training is authorized to promulgate emergency and legislative rules establishing a course of instruction.

The Director of the Office of Miners’ Health, Safety, and Training is authorized to promulgate emergency and legislative rules in consultation with the Board of Coal Mine Health and Safety establishing a course of instruction.

It is the duty of every mine operator who employs apprentices, as that term is used in §22A-8-3 and §22A-8-4 of this chapter code to ensure that the apprentices are effectively supervised with regard to safety practices and to instruct apprentices in safe mining practices.

During the first one120 hundred twenty 90 days of employment in a mine, the apprentice shall work within sight and sound of the mine foreman, assistant mine foreman, or an experienced miner, and in a location that the mine foreman, assistant mine foreman, or experienced miner can effectively respond to cries for help of the apprentice.apprentice:

Provided, That if the apprentice has completed an approved training program as approved by the Board of Coal Mine Health and Safety, this period may be reduced by an amount not to exceed 30 days.

of this chapter code or any regulation or any plan or agreement promulgated or entered into thereunder shall arrange for the prompt correction thereof.

Should the mine foreman or his or her assistants find a place to be in a dangerous condition, they shall not leave the place until it is made safe,safe or shall remove the persons working therein until the place is made safe by some competent person designated for that purpose.

            Notwithstanding any other law to the contrary, the director may use any data collected from a tracking device as evidence that a person designated to perform daily examinations under this section neglected or failed to perform a duty mandated by this section under §22A-1-31 of this code and may decertify any miner who is found to have failed to perform his or her duties.

Article 2A.

Use of Diesel-Powered Equipment in Underground Coal Mines.

§22A-2A-405.

Exhaust gas monitoring and control.

 (a) For monitoring and controlling exhaust gases, the director shall establish the maximum allowable ambient concentration of exhaust gases in the mine atmosphere.

Standards for exhaust gases, stated in parts per million, shall be established for carbon monoxide and oxides of nitrogen.

The rules shall establish the location in the mine at which the concentration of these exhaust gases is to be measured, the frequency at which measurements are to be made, and requirements prescribing the sampling instruments to be used in the measurement of exhaust gases:

Provided, That the measurement of nitrogen oxide shall not be required for any operator in the state unless the measurement of ambient concentrations is required for those miners working within sight and sound of the equipment.

(b) The director shall establish the concentration of exhaust gas, stated as a percentage of an exposure limit, that when present will require changes to be made in the use of diesel-powered equipment or the methods of mine ventilation, or will require other modifications in the mining process.

(c) The director shall provide for the remedial action to be taken if the concentration of any of the gases listed in subsection (a) of this section exceeds the exposure limit.

(d) In addition to the other maintenance requirements required by this article, the director shall establish requirements provide for service, maintenance and tests which are specific to an engine’s fuel delivery system, timing, or exhaust emissions control and conditioning system.

Any miner holding a certificate of competency and qualification may have one twoperson persons working with him or her, and under his or her supervision and direction, as an apprentice, for the purpose of learning and being instructed in the duties and calling of mining.

Provided, That a mine foreman, assistant mine foreman, or fire boss supervising apprentices in an area where no coal is being produced or which is outby the working section may have as many as five apprentices under his or her supervision and direction, as apprentices, for the purpose of learning and being instructed in the duties and calling of mining or where the operator is using a production section under program for training of apprentice miners, approved by the Board of Miner Training, Education and Certification Board of Coal Mine Health and Safety.

If any person shall, at any time, break and enter, or shall enter without breaking, any office, shop, underground coal mine, storehouse, warehouse, banking house, or any house or building, other than a dwelling house or outhouse adjoining thereto or occupied therewith, any railroad or traction car, propelled by steam, electricity or otherwise, any steamboat or other boat or vessel, or any commercial, industrial or public utility property enclosed by a fence, wall, or other structure erected with the intent of the property owner of protecting or securing the area within and its contents from unauthorized persons, within the jurisdiction of any county in this state, with intent to commit a felony or any larceny, he or she shall be deemed guilty of a felony and, upon conviction, shall be confined in a state correctional facility not less than one nor more than 10 years.

(a) A person who willfully enters an underground coal mine, whether active workingsworkings, inactive workings, or abandoned workings, without permission, is guilty of a felony and, upon conviction thereof shall be imprisoned in a correctional facility not less than one year and thenor undergroundmore minethan is10 either:years and shall be fined not less than $5,000 nor more than $10,000:

Provided, That for any conviction pursuant to this subsection, any inactive or abandoned underground workings must be either:

or (2) clearly identified by signage at some conspicuous place near the entrance of the mine that includes a notice that the unauthorized entry into the mine is a felony criminal offense,offense. is guilty of a felony and, upon conviction thereof shall be imprisoned in a correctional facility not less than one year and nor more than 10 years and shall be fined not less than $5,000 nor more than $10,000.

(b) A person who willfully enters a surface coal mine, whether active workings, inactive workings or abandoned workings, without permission, and with the intent to commit a felony or any larceny, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not less than one week and not more than one month and shall be fined not less than $1,000 nor more than $5,000.

For a second convictionconviction, pursuant to this subsection, the person shall be guilty of a felony and shall be confined in a correctional facility not less than one year and not more than five years and shall be fined not less than $5,000 nor more than $10,000.

For a third or subsequent conviction, pursuant to this subsection, the person isshall be guilty of a felony and shall be confined in a correctional facility not less than five yearyears and not more than 10 years and shall be fined not less than $10,000, nor more than $25,000.

 (c) AIf a person who violates subsections (a) or (b) of this section, and during any rescue efforts for any such person, there occurs an injury that causes substantial physical pain, illness, or any impairment of physical condition to any person other than himself or herself, then that person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one week and not more than one year and shall be fined not less than $1,000 nor more than $5,000:

(d) AIf a person who violates subsections (a) or (b) of this section, and during any rescue efforts for any such person, there occurs an injury that creates a substantial risk of death, causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ to any person other than himself or herself, then that person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than two nor more than 10 years and shall be fined not less than $5,000 nor more than $10,000.

(e) AIf a person who violates subsections (a) or (b) of this section, and during any rescue efforts of such person, the death of any other person occurs, then that person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a correctional facility for not less than three nor more than 15 years and shall be fined not less than $10,000 nor more than $25,000.

 (g) The terms “mine”, “active workings”, “inactive workings”, and “abandoned workings” have the same meaning ascribed to such terms as set forth in §22A-1-2 of this code.

(h) Nothing in this section shall be construed to prevent lawful assembly and petition for the lawful redress of grievances, during any dispute, including, but not limited to, activities protected by the West Virginia Constitution or the United States Constitution or any statute of this state or the United States.