Represented Coal Company in Acquisition of Mines
Dinsmore, led by Tom Rubenstein and Jason Sims, represented Coronado in a $420 million transaction that included 14 other attorneys from various practice groups within the firm. In the transaction, Coronado acquired the Buchanan Mine Complex in Southwest Virginia along with the idled Amonate Complex and additional undeveloped metallurgical coal reserves in Southwest Virginia and Pennsylvania from CONSOL Energy, Inc.
Dinsmore acted as lead counsel in the transaction and was responsible for nearly all legal issues concerning the transaction, including advising the client on environmental, tax, labor and employment, employee benefits and real estate issues.
This particular coal transaction involved complex issues because CONSOL Energy retained rights to the natural gas on these properties, which required Dinsmore to assist Coronado in the negotiation of cooperation agreements related to the properties and advising Coronado on the proper structure for the transaction based on the continuing relationship that will exist between Coronado and CONSOL Energy after the consummation of the transaction.
Coronado significantly increased its capacity with this acquisition and now has an enhanced position in the markets it serves with a greater ability to serve its customers and increase its overall sales.
Advice regarding Establishment and Operation of Natural Gas utility (Gas/Water/Sewage)
We represented a Generation & Transmission (G&T) electric utility in two rate cases. Our representation commenced while the utility was in difficult financial straits, and through our efforts, we helped the utility secure sufficient revenues to ensure its continued viability and the continued provision of safe, reliable, and reasonable service to its customers. Throughout this representation, we interfaced heavily with the staff at the Kentucky Public Service Commission and other stakeholders in the litigation.
Lead Counsel in Leasing Transaction for Marcellus Shale Rights
Purchase of Working Interest in Marcellus Shale Wells
Acquisition of Two Metallurgical Coal Companies in West Virginia
In an environment of increased scrutiny and regulations, coal companies and mine operators must be able to strategically grow and evolve in order to succeed. Seeking to expand their role in the metallurgical coal market, the coal company turned to Dinsmore to guide them through the acquisition of the two metallurgical coal companies with coal mine complexes in southern West Virginia. We served as deal counsel for the transaction, handling everything from due diligence to negotiating the purchase agreement to coordinating, negotiating complex employment liability issues, and shepherding the closing of the sale. The transaction will enable our client to enter the metallurgical coal market and expand their business offerings moving forward.
Defense of Toxic Tort and Environmental Action
Bulk Terminals/George O’Bryan v. Atlantic Richfield, No. 2005-CA-002448-MR, 2007 Ky. App. LEXIS 78 (Ky. App. March 9, 2007). Click HERE to view the decision.
Defining the EPA’s Water Quality Standards and Permitting Authority
We represented the Kentucky Coal Association (KCA) when the Environmental Protection Agency attempted to implement a final guidance that enabled blockage of Clean Water Act permits for coal mining operations.
The EPA issued final guidance in July 2011 which directed its field offices to object to state-issued permits in certain ecoregions in Appalachia (particularly Eastern Kentucky and West Virginia) unless they contained a “reasonable potential analysis” prior to permit issuance (even if the mine was new and therefore no site-specific data upon which to base an RPA was available) and/or numerical conductivity limits, which allowed EPA to block permits for virtually all new or expanded surface coal mines in Eastern Kentucky or West Virginia. We represented the KCA in arguing that the EPA had exceeded its authority in issuing the final guidance because it went beyond their oversight as outlined in the Clean Water Act and the Surface Mining Control and Reclamation Act. We also alleged that the EPA’s final guidance infringed upon the states’ authority to enact and monitor their own water quality standards.
Our case was transferred to the U.S. District Court in Washington, D.C., where the KCA became a co-plaintiff along with the National Mining Association, the Commonwealth of Kentucky, the state of West Virginia, and the city of Pikeville (Ky.). Working in coordination with other plaintiff counsel, we prepared extensive briefs, including researching and addressing Kentucky-specific requirements related to water conductivity standards. We also participated in oral arguments during a hearing, demonstrating that the power to set water quality standards is delegated to the states and that the EPA did not follow the formal rulemaking process to attempt to implement a federal standard.
After hearing oral arguments, the judge ruled that EPA’s reliance upon the final guidance to object to and thereby block the issuance of individual Clean Water Act permits for new or expanded surface coal mines in Eastern Kentucky and West Virginia was unjustified and unlawful. Unfortunately, EPA continues to refuse to issue the permits at issue in direct contravention of the court’s order. The case is now on appeal before the U.S. Circuit Court of the District of Columbia.
Learn more about this case in the article: Judge Sides With Coal Industry Against EPA
Environmental Crime Defense
FIFRA Enforcement Defense
Pre-Bid Due Diligence
• Regulatory approvals for change in ownership or control of utilities;
• Regulatory approvals for financing applications;
• Regulatory approvals for obtaining certificate of public convenience and necessity;
• Renewable energy contract review;
• PSC and OSHA complaints;
• Utility supply and vendor contracts;
• Utility tariffs;
• Regulatory review of rate-affecting issues;
• Fuel Adjustment Clauses;
• Pollution Control Bond change in control;
• Cost recovery of capital expenditures for pollution control equipment and renewable energy projects;
• Environmental surcharges;
• Projecting future impact of greenhouse gas regulations;
• Title V air permits;
• Environmental contamination and compliance issues associated with ongoing operations;
• Disposal of coal combustion by-products;
• General environmental regulatory compliance;
• State and local taxation;
• Real estate and operating leases;
• Franchises, rights-of-way, permitting, planning and zoning, and eminent domain;
• Retail operations review;
• Wholesale electric supply agreements;
• Gas pipeline regulatory issues; and
• Legislative, policy, and strategic planning advice.