Current through Register Vol. XLI, No. 24, June 14, 2024
Section 38-2-26 - Blasting Damage Claim and Arbitration for Blasting Damage Claims26.1. Damage to Surface Structures. - A claim of damage to surface structures from blasting will be the result of one or more of the following: 26.1.a. Fly Rock. - Fly rock damage is based on the presence of debris from the blast site and the presence of impact damage;26.1.b. Air Blast. - Air blast damage is characterized by broken or cracked window glass; and26.1.c. Blasting Vibration Damage. - Blasting vibration damage is investigated by experienced and specially trained personnel to accurately determine the presence of such damage. Examples are explained in, but not limited to, the American Insurance Association publication, Blasting Damage, A Guide for Adjusters and Engineers.26.2. Filing a Claim. 26.2.a. It is the responsibility of the property owner to notify the Secretary of the alleged blasting damage. An investigation to conduct a field to determine the initial merit of the damage claim. The investigation will include the following: 26.2.a.1. contact property owner within one (1) business day of receiving the complaint to schedule a visit to the property where the alleged blasting damage occurred and interview the property owner;26.2.a.2. visit the blasting site to determine if the operator and blaster are in compliance with state blasting requirements; and26.2.a.3. a written a report on the investigation that describes the nature and extent of the alleged damage, taking into consideration the condition of the structure, observed defects, or pre-existing damage that is accurately indicated on a pre-blast survey, conditions of the structure that existed where there has been no blasting conducted by the operator, or other reliable indicators that the alleged damage pre-dated the blasting by the operator. The inspector will make one of the following initial determinations and notify the claims administrator, make a recommendation on the merit of the claim, and supply such information that the claims administrator needs to sufficiently document the claim: 26.2.a.3.A. There is merit that blasting caused the alleged damage;26.2.a.3.B. There is no merit that blasting caused the alleged damage26.2.a.3.C. The determination of merit as to whether blasting caused or did not cause the alleged damage cannot be made and inform the property owner of the following four resolution options available for the alleged blasting damage:26.2.a.3.C.1. Withdraw the claim;26.2.a.3.C.2. File a claim with the operator or the operator's general liability insurance carrier;26.2.a.3.C.3. File a claim with the homeowner's insurance carrier; or26.2.a.3.C.4. Submit to the Secretary's claims process. Provided however, If the property owner declines, the Secretary's involvement will be concluded.26.2.a.3.C.5. Once a determination is made as to the merit of a claim by the inspector, the Secretary shall offer the claimant and the permittee the opportunity to meet to attempt to resolve the issue.26.3. The claims administrator as used in this section means the individual, firm or organization that manages the blasting damage claims program for the Secretary will be responsible for the following:26.3.a. Sending notice to the respective operator of the damage claim;26.3.b. Making an initial assignment of the damage claim to a qualified claims adjuster within one (1) business day;26.3.c. Providing the relevant claims information to the arbitrator assigned to that claim;26.3.d. Making a final determination on the merit and loss value of the claim; and26.3.e. Providing a complete report of the adjusters and the administrators findings to the Secretary the claimant and the respective operator.26.4. The adjuster means an outside party that is assigned to investigate, document, evaluate and make recommendations on a reported loss will be responsible for the following: 26.4.a. Contacting the property owner and physically visiting the site of the alleged blasting damage within three (3) business days of the initial assignment;26.4.b. Documenting the alleged blasting damage through accepted methods such as photographs, video tapes, written descriptions, and diagrams;26.4.c. Reviewing all available supporting information such as blasting logs, seismograph records and pre-blasting surveys;26.4.d. Making a determination of the need for additional assistance from structural engineers, building contractors and blasting consultants. The claims administrator will be the approving authority for the assignment of such specialists;26.4.e. Making a preliminary determination as to the merit of the blasting damage claim; and26.4.f. Making an initial monetary determination of the loss value of the respective claim. 26.4.f.1. The adjuster will use the following ratings in the determination of the merit of the alleged blasting damage claim: 26.4.f.1.A. Caused by blasting;26.4.f.1.B. Probably caused by blasting;26.4.f.1.C. Possibly caused by blasting;26.4.f.1.D. Probably not caused by blasting; or26.4.f.1.E. Not caused by blasting.26.4.f.2. The merit-rating factors include, but are not limited to the following: 26.4.f.2.A. The claimant is the property owner;26.4.f.2.B. Correlation of alleged damage event to a specific blast and mine;26.4.f.2.C. Correlation of alleged damage event to a large, unusual or problem shot;26.4.f.2.D. Proximity to the blast site;26.4.f.2.E. Timeliness of first notice of loss;26.4.f.2.F. Damage that is not indicated on the pre-blast survey;26.4.f.2.G. Lack of any other issues or grievances besides blasting;26.4.f.2.H. Age and physical condition of the structure in question;26.4.f.2.I. Presence of seismographic records close to the structure in question;26.4.f.2.J. History of previous blasting in the immediate area;26.4.f.2.K. Property that has been undermined; and26.4.f.2.L. An area with a history of geological abnormalities.26.4.g. Recommendations as to the equitable resolution of the claim; and26.4.h. Completing report and sending to the claims administrator.26.5. 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.26.6. Selection of Arbitrator. - The parties may choose 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.26.7. 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:26.7.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; and26.7.b. A confidential statement summarizing a party's position on the issues and what relief, if any, should be awarded.26.8. 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.26.9. 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 facility for the arbitration. In the event the parties cannot agree on the place of arbitration; the arbitrator is empowered to select a place.26.10. 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.26.11. 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.26.12. Arbitration Award, Fees, Costs and Expenses. - If parties agree on settlement after entering 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 ($1,000.00). Otherwise, the parties are equally responsible for the cost of the proceeding and are responsible for their own fees and costs.26.13. 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.26.14. 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.