Current through Register Vol. XLI, No. 50, December 13, 2024
Section 199-1-6 - Arbitration for Blasting Damage Claims6.1. Listing of Arbitrators. -- The Secretary shall maintain and make available to the claimant and the operator a listing of persons willing and qualified to serve as arbitrators. The Secretary will recommend a listing from the roster maintained by the American Arbitration Association from which the parties will choose the arbitrator. The listing shall identify those persons who are qualified and willing to serve, including but not limited to, those willing to serve on a volunteer (i.e., without compensation) basis. The Secretary shall establish a pool of arbitrators sufficient to handle the claims process. Once a year the Environmental Advocate, and industry representatives (selected by the West Virginia Coal Association, Inc.) may move to strike up to twenty-five percent (25%) of the list, with cause. The Environmental Advocate is required to seek citizen input.6.2. Selection of Arbitrator. -- The parties may chose their own arbitrator by agreement, who need not be on the listing of arbitrators as defined by subsection 6.1 of this rule. In the absence of such agreement, the Secretary will provide the parties with a listing of arbitrators and permit each of the parties to eliminate, in rotation, names from the list until one name remains. That person shall serve as arbitrator.6.3. Provision for Preliminary Information to the Arbitrator. -- The arbitrator may require the parties to provide pertinent information to the arbitrator and to the other parties prior to the arbitration session. Such information may include, but is not limited to: 6.3.a. The pre-blast survey, shot logs, and other documents deemed necessary by the arbitrator to determine the merits and value, if any, of the blasting damage claim; and6.3.b. A confidential statement summarizing a party's position on the issues and what relief, if any, should be awarded.6.4. Demand for Arbitration and Timeframes for Arbitration. -- When notifying the parties of the claim determination, the Secretary shall also notify the parties of the right to demand arbitration. If a party wants to arbitrate the claim determination, the party seeking arbitration shall serve the other party by certified mail, a written demand for arbitration on forms provided by the Secretary within fifteen (15) days of receipt of the initial claim determination. An arbitrator shall be chosen within fifteen (15) days of receipt of the notice by the parties for arbitration. Unless otherwise agreed by the parties and the arbitrator, the arbitration shall be conducted within thirty (30) days after the appointment of the arbitrator. Arbitration shall be completed within thirty (30) days after the first arbitration session, unless changed by agreement of the parties and the arbitrator. The arbitrator is empowered to set the date and time of all arbitration sessions.6.5. Place of Arbitration. -- The parties may by agreement select the place of arbitration and arrange for paying any associated costs. If the place of arbitration is determined by agreement, the place must be identified to the arbitrator upon the arbitrator's appointment. The Secretary shall, upon reasonable request by the parties, make available its state office for the arbitration. In the event the parties cannot agree on the place of arbitration, the arbitrator is empowered to select a place.6.6. Confidentiality of the Arbitration Process. -- Arbitration shall be regarded as confidential. The arbitrator shall maintain and preserve the confidentiality of all arbitration proceedings and records. An arbitrator may not be subpoenaed or called to testify, or otherwise be subject to process requiring disclosure of confidential information in any proceeding relating to or arising out of the dispute arbitrated.6.7. Presentations to the Arbitrator. -- Unless otherwise directed by the Arbitrator, witnesses for the claimant will be the claimant, any one other person designated by the claimant, and the witnesses for the operator will be a company Officer, its engineer or blaster. If the claimant does not have a representative and requests representation, the Secretary, through the Office of the Environmental Advocate, shall provide a representative, willing to work at a low-cost or no-cost, throughout the arbitration process, the representative is not required to be an attorney-at-law.6.8. Arbitration Award, Fees, Costs and Expenses. -- If parties agree on settlement after entering into arbitration, parties may request their settlement be declared the official award by the arbitrator. Within thirty (30) days after the arbitration process is closed or terminated, the arbitrator shall issue a decision upholding, upholding in part, or overruling the initial claim determination made by the claims administrator. If the initial claim determination was in favor of the claimant, the operator requests arbitration and the claim determination is upheld or upheld in part, the operator shall pay the costs of the proceeding, as well as reasonable representation fees and costs of the claimant not to exceed one thousand dollars ($l,000.00). Otherwise, the parties are equally responsible for the cost of the proceeding and are responsible for their own fees and costs.6.9. Binding Nature of the Award. -- By requesting arbitration, the results of the arbitration are intended to be final and binding. As such they are not appealable to the West Virginia Supreme Court of Appeals, the circuit courts, or any other tribunal. The Secretary shall provide written notice to the claimant of the binding nature of the arbitration award and shall secure from the claimant a written acknowledgement that the claimant understands the final nature of the award and agrees to be bound by it. 6.10. Payment of the Award. -- Should an award be made against the operator on an arbitrated claim, the operator shall pay the full amount of the award within thirty (30) days of the final determination and award. If the operator fails to pay the award within thirty (30) days, the Secretary may issue a cessation order pursuant to W. Va. Code § 22-3-16 for all sites operated by the operator.