Marfork Coal Co. v. Callaghan

¶1Justice, concurring:

¶2(Filed June 30, 2004)

¶3I concur with the majority decision, but write separately to decry the fact that our Legislature has provided permit suspension or revocation as the only meaningful punishment in a ease such as this. Suspension or revocation of a mining permit means that the mine owners will be punished a little while the coal miners will be harmed a lot. Unlike a substantial monetary fine, any action that stops the mining puts a greater burden on a Boone County coal miner than it does a stockholder in Richmond or Amsterdam.1

¶4Not surprisingly, employees of the Division of Natural Resources face great public pressure to keep the mines open and the miners at work. Until the Division of Natural Resources has a greater ability to fine companies that break the law without directly harming the miner who is just doing his job, we will continue to have under-enforcement of the mining laws in West Virginia.

¶6concurring:

¶7(Filed July 14, 2004)

¶8The dissent compares the actions of the DEP hearing examiner to a “circuit judge indicating publicly that he [sic] believed the accused was a bad person or that he committed the murder,” two weeks before the individual’s trial. Of course, such a judge would be disqualified.

¶9But the author of the dissent and I are both uniquely situated1 to know that such comments are commonly made by circuit judges after a criminal defendant’s conviction — typically during sentencing. As the Court’s opinion demonstrates, the fact of Marfork’s multiple offenses and wrongdoing was established conclusively well before Director Crum’s comments on the show cause hearing process, which is essentially a penalty process. Ironically, the analogy and example offered by the dissent as the analytical heart of its argument against the majority opinion — turns out to fully support the majority’s conclusion.

¶10It is also worth noting that the dissent does not point to one line of the transcript of the hearing as evidence of any unfairness.

¶11Like the dissent, I also hate it that a worker has to lose even a day’s pay because management has been ignoring environmental and human health and safety laws. (But short-term unemployment benefits are available.) Restaurants have to shut down as a penalty when health inspectors find repeated health and safety violations. MSHA shuts down unsafe mines. The Legislature and Congress set permit suspension as the remedy — we must presume, for good reasons. I have never heard of a coal company offering to pay “huge fines” to avoid their workers losing a day’s pay. When we get that case I will have an open mind to the dissent’s arguments.

¶12Accordingly, I concur.