United Mine Workers of America v. Faerber

• Decision Date: 10 July 1986
• Docket Number: No. 17076,17076
• Citation: 365 S.E.2d 345,179 W.Va. 65
• Court: West Virginia Supreme Court
• Parties: UNITED MINE WORKERS OF AMERICA, etc., et al. v. Kenneth FAERBER, Commissioner of the West Virginia Department of Energy, et al.

Page 345

365 S.E.2d 345

179 W.Va. 65

UNITED MINE WORKERS OF AMERICA, etc., et al. v. Kenneth FAERBER, Commissioner of the West Virginia Department of Energy, et al.

No. 17076.

Supreme Court of Appeals of West Virginia.

July 10, 1986.

Dissenting Opinion Aug. 13, 1986.

Syllabus by the Court

1. "Full roof bolting" is required to be utilized in all underground coal mine sections in this State using auger-type continuous coal mining equipment, under W.Va.Code, 22A-2-25(a) [1985], which provides that "[t]he roof and ribs of all active underground roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs."

2. " 'A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969)." Syl. pt. 1, United Mine Workers v. Scott, 173 W.Va. 356, 315 S.E.2d 614 (1984).

3. " 'Mandamus will not be denied on the ground that there is another remedy unless such other remedy is equally convenient, beneficial and effective.' Syl. pt. 1, Hardin v. Foglesong, 117 W.Va. 544, 186 S.E. 308 (1936)." Syl. pt. 2, Allen v. State Human Rights Commission, 174 W.Va. 139, 324 S.E.2d 99 (1984).

Daniel F. Hedges, Charleston, Michael Holland, Gen. Counsel, UMWA, Washington, D.C., for United Mine Workers of America.

Robinson & McElwee, Timothy Miller, Joseph Price, Edward Hall, Charleston, for Faerber.

Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty, Laura E. Beverage, Thomas N. McJunkin, Charleston, John L. Kilcullen, Kilcullen, Wilson, & Kilcullen, Washington, D.C., Kay, Casto & Chaney, Richard D. Jones, Thomas V. Flaherty, Charleston, for intervenors.

McHUGH, Justice:

In this mandamus proceeding the petitioners seek an order compelling enforcement of one or more statutes which allegedly require the use of "full roof bolting" in all underground coal mine sections in this State using auger-type continuous coal mining equipment. ^*

The petitioners are the United Mine Workers of America, the international officers thereof and one of the members of the West Virginia Board of Coal Mine Health and Safety. The respondents are the Commissioner of the West Virginia Department of Energy, the Director of the Division of Mines and Minerals of said Department and, as intervenors, coal operators engaged in this State in underground auger mining. The Commissioner and the Director have general supervisory and enforcement powers and duties relating to the energy policy of this State, including the production of coal and all other minerals. See, e.g., W.Va.Code, 22-1-4, -5, -7, -8, -10 and -15, and W.Va.Code, 22A-1-1, 22A-1A-2, -3 and -4 (all of these sections of the Code were amended in 1985). The record includes the amended petition, the respective answers of the originally named respondents as well as the intervenors, and numerous exhibits filed by the parties. In addition to the record and the briefs and oral argument of the parties, the Court has also considered the amici curiae brief of the West Virginia Coal Association and the National Independent Coal Operators' Association.

I

W.Va.Code, 22A-2-25 [1985] and W.Va.Code, 22A-2-26 [1985], derived from and virtually identical to 30 U.S.C. § 862 (1982), provide minimum safety standards, subject to review and improvement on a continuing basis, to protect persons working in underground coal mines from falls of the roof or ribs of the mine. Roof falls are the leading cause of fatal accidents in mines. Braithwaite, Enforced Self-Regulation: A New Strategy For Corporate Crime Control, 80 Mich.L.Rev. 1466, 1484 & n. 57 (1982).

The coal operator has primary responsibility to prevent injuries and deaths resulting from working under unsupported roof. W.Va.Code, 22A-2-25(c) [1985]. Prior to commencing new operations, and subject to review at least semiannually, the coal operator must adopt a roof control plan, with input from the safety committee of the miners. The roof control plan and any revisions thereof must be approved by the Director of the Division of Mines and Minerals of the West Virginia Department of Energy. The plan shall show the type of support and spacing approved by the Director. W.Va.Code, 22A-2-25(a) [1985].

"Every operator shall require that no person may proceed beyond the last permanent support unless adequate temporary support is provided or temporary support is not required under an approved roof control plan and absence of such support will not pose a hazard to the miners." W.Va.Code, 22A-2-25(c) [1985]. "The method of mining followed in any coal mine shall not expose the miner to unusual dangers from roof falls." W.Va.Code, 22A-2-26(a) [1985].

There are no regulations promulgated by the West Virginia Department of Energy's Director of the Division of Mines and Minerals implementing the roof support provisions of W.Va.Code, 22A-2-25 and -26 [1985]. The implementing federal regulations are found at 30 C.F.R. §§ 75.200-1 through 75.200-14 (1985). There, the criteria for the various types of roof control plans are set forth. A "full roof bolting" plan is one in which roof bolts constitute the sole means of roof support at the working face. 30 C.F.R. § 75.200-7 (1985). A "conventional" roof control plan is one in which the installation of materials other than roof bolts, such as metal or wood posts, jacks, or cribs in conjunction with wooden cap blocks (half headers), footers (sills), planks and beams, are installed as the sole means of roof support at the working face. 30 C.F.R. § 75.200-8 (1985). "Spot roof bolting" involves the installation of roof bolts where adverse roof conditions are encountered, as a supplement to another approved type of roof control plan. 30 C.F.R. § 75.200-10 (1985). Where both roof bolts ("spot" bolting) and conventional supports are used for roof control at the working face, the roof control plan is known as a "combination" roof control plan. 30 C.F.R. § 75.200-9 (1985).

In a coal mine, or a section thereof, using auger-type continuous mining equipment and a combination roof control plan, the wood (timber) posts furnishing the primary means of roof support must be systematically removed and relocated at the working face to allow the auger machine to extract the coal by moving laterally across the working face. Consequently, in auger-type continuous mining sections without full roof bolting, persons in the work crew at the working face must proceed beyond the last permanent roof support to (1) install temporary supports, (2) remove temporary supports, (3) set manual pull jacks on models of auger machines not having automatic jacks and (4) to shovel up to the jacks.

In non-auger ("drum" type) continuous mining sections, adequate temporary support is provided by automated temporary roof support (ATRS) systems. It is uncontroverted on the record that ATRS systems are not now technologically feasible for use in thin seam coal mines in which auger-type continuous mining equipment is used.

As of November 1, 1985, according to reports of the West Virginia Department of Energy, there were in this State 41 underground coal mines and 44 mine sections using auger-type continuous mining equipment. "Full roof bolting" is required in only nine of the forty-four underground auger sections; in all of the other sections having roof control plans, a "combination" roof control plan (timber posts and "spot" roof bolting) is utilized. No roof fall fatalities have occurred in the State of West Virginia in auger-type continuous mining sections with full roof bolting. In contrast, since the year 1974, 17 roof fall fatalities and numerous serious injuries have occurred in those sections not requiring full roof bolting. Reports of the investigations of these fatalities are silent on the effect of not having full roof bolting.

The petitioners assert that full roof bolting is required to be used in all underground auger-type continuous mining sections in this State. They assert that the second sentence of W.Va.Code, 22A-2-25(c) [1985], quoted supra, prohibiting persons from proceeding beyond the last permanent roof support (with two exceptions, argued by the petitioners to be inapplicable), and the first sentence of W.Va.Code, 22A-2-26(a) [1985], quoted supra, prohibiting exposure of the miners to unusual dangers from roof falls, require full roof bolting to be utilized. The petitioners also assert that the second sentence of W.Va.Code, 22A-2-25(a) [1985] requires full roof bolting: "The roof and ribs of all active underground roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs."

The respondents contend, however, that the third sentence of W.Va.Code, 22A-2-25(a) [1985] precludes a "blanket" requirement of full roof bolting in all underground mines using auger-type continuous mining equipment because that portion of the statute provides for the coal operator to develop, and the Director of the Division of Mines and Minerals to approve, "[a] roof control plan and revisions thereof suitable to the roof conditions and mining systems of each coal mine...." Cf. Zeigler Coal Co. v. Kleppe, 536 F.2d 398, 407 (D.C.Cir.1976) (ventilation plans for underground coal mines are to deal with unique conditions peculiar to each mine and are not to be used to impose general requirements to all or nearly all coal mines).

II

" '[T]he first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource--the miner[.]' " W.Va.Code, 22-6-1(a)(1) [1985] (quoting the Federal Coal Mine Health and Safety Act of 1969, as amended), also, incorporated by reference in ...