                                 CODE OF VIRGINIA

 BOARD ACTION; SUSPEND, REVOKE, OR TAKE OTHER ACTION (§ 45.2-528)

A. The Board of Coal Mining Examiners may suspend, revoke, or take other action
regarding any certificate upon finding that (i) the holder has (a) failed to
comply with the continuing education requirements within the period following
the suspension of the certificate as provided in &#xA7; 45.2-527, (b) been
intoxicated while on duty, (c) neglected his duties, (d) violated any provision
of the Act or any other coal mining law of the Commonwealth, or (e) used any
controlled substance without the prescription of a licensed prescriber or (ii)
other sufficient cause exists. The Board shall also suspend, revoke, or take
other action regarding the first-class mine foreman certificate of any mine
foreman who fails to display a thorough understanding of the roof control plan
and ventilation for the area of the mine that he is responsible for implementing
when examined on-site by a mine inspector in accordance with guidelines adopted
by the Board. In such a case, the Board shall make a determination, based on
evidence presented by interested parties, of whether the mine foreman had a
thorough knowledge of such plans at the time of his examination by the mine
inspector.

B. The Board may act to suspend, revoke, or take other action regarding any
certificate upon the presentation of written charges alleging prohibited conduct
set forth in subsection A by (i) the Chief or the Director or his designated
agent; (ii) the operator of a mine at which such person is employed; or (iii) 10
persons employed at the mine at which such person is employed, or, if fewer than
10 persons are employed at the mine, a majority of the employees at the mine.
The Board may act on its own initiative to suspend, revoke, or take other action
on any certificate for grounds set forth in clause (i)(a) of subsection A.

C. Any person holding a certificate issued by the Board shall report to the
Chief within 30 days of any criminal conviction in any court of competent
jurisdiction for possession or use of any controlled substance without the
prescription of a licensed prescriber. This conviction shall result in the
immediate temporary suspension of all certificates held by such person pending a
hearing before the Board.

D. Any miner present at any mine shall be deemed to have given consent to
reasonable search, at the direction of the Chief by employees of the Department,
of his person and his personal property located at the mine. Such search shall
be limited to the investigation of potential violations of the Act.

E. All information regarding substance abuse test results of certified persons,
written or otherwise, received by the Department or Board shall be confidential.
Any hearing of the Board in which such information is presented shall be
conducted as a closed session in accordance with the Virginia Freedom of
Information Act (&#xA7; 2.2-3700 et seq.).

F. An affirmative vote of a majority of members of the Board who are qualified
to vote is required for any action to suspend, revoke, or take other action
regarding a certificate.

G. Prior to suspending, revoking, or taking other action regarding a
certificate, the Board shall give due notice to the holder of the certificate
and conduct a hearing. Any hearing shall be conducted in accordance with &#xA7;
2.2-4020 unless the parties agree to informal proceedings. The hearing may be
conducted by the Board or, in the Board&#8217;s discretion, by a hearing officer
as provided in Article 5 (&#xA7; 2.2-4025 et seq.) of the Administrative Process
Act.

H. Any hearing conducted after the temporary suspension of a miner&#8217;s
certificate due to (i) a criminal conviction in any court of competent
jurisdiction for possession or use of any controlled substance without the
prescription of a licensed prescriber as provided for in subsection C, (ii) a
failure to pass a substance abuse test required by the Chief pursuant to &#xA7;
45.2-556, (iii) a failure to pass a pre-employment substance abuse screening
test, (iv) a discharge for violation of the company&#8217;s substance or alcohol
abuse policies, (v) a positive test for the use of any controlled substance
without the prescription of a licensed prescriber, (vi) a positive test for
intoxication while on duty status, or (vii) a failure to complete a substance
abuse program pursuant to &#xA7; 45.2-565 shall be conducted within 60 days of
the temporary suspension. The Board shall make every effort to hold the hearing
within 40 days of the temporary suspension.

I. Any person who has been aggrieved by a decision of the Board shall be
entitled to judicial review of such decision. Appeals from such decisions shall
be conducted in accordance with Article 5 (&#xA7; 2.2-4025 et seq.) of the
Administrative Process Act.

HISTORY: Code 1950, §§ 45-29, 45-31; 1954, c. 191; 1966, c. 594, § 45.1-13;
1978, c. 729; 1994, c. 28, § 45.1-161.35; 2004, c. 855; 2007, cc. 894, 914;
2021, Sp. Sess. I, c. 387.