State Coal-Non-Coal Mine Permitting (Pennsylvania)
Represented numerous clients in connection with securing the necessary permits (coal mining, non-coal mining, NPDES, air quality, Army Corps 404 approvals, etc.) to open and conduct coal and non-coal mining operations throughout Pennsylvania.
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
Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991)
Assisted lead counsel in case against Governor where Fourth Circuit held state trespass statute unconstitutional and preempted. Also assisted in successful claim for attorney fees of $850,000.
Progressive Minerals, Inc. v. Muhammad Haroon Rashid, et al., Civ. Action No. 5:07 CV 108, 2009 U.S. Dist. LEXIS 90437 (N.D. WV 2009)
The Court found in the favor of the firm's client, Progressive Minerals, Inc., in a tort action alleging that the defendants defrauded the client in a mineral transaction in West Virginia.
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.
Negotiation of Global Settlement in Environmental Law Matter
Advice regarding Establishment and Operation of Natural Gas utility (Gas/Water/Sewage)
We are currently assisting a large, municipal water and sewage utility in Kentucky with respect to its plans to enter the natural gas business in order to spur economic development in the region. We are advising the client on all aspects on the statutory and regulatory issues implicated by this new venture, as well as the related issues implicated by its status as a municipal instrumentality. In addition to helping the client navigate these issues, we have also been retained to assist with negotiations regarding gas purchase agreements, transmission and distribution issues, eminent domain issues, and all aspects of the project – “from A to Z” - that will help them secure the supply of gas and deliver it to customers.
Acquisition of surface mine, deep mine, coal reserves, coal leases and mining permits
We served as deal counsel for a coal producing company in its acquisition of a deep mine and substantial coal reserves, together with a surface mine, coal and surface leases, and mining permits, for a total value of approximately $25 million. The transaction included a unique financing structure involving the acquisition of certain reserves and a leasing arrangement with third party landholding companies, as well as important labor considerations resulting from certain obligations of the Seller to the UMWA. We helped negotiate and drafted all of the documents necessary to facilitate the deal, and handled all aspects of the due diligence review including labor issues. We counseled the client through the successful closing and execution of the purchase, which will allow the client to expand its mining operations in the Appalachian coal fields.
Acquisition of Coal Mining Operation Assets
We served as transaction counsel to Coronado Coal II LLC in an approximately $174 million transaction involving the acquisition of the coal mining operation assets of Cliffs Logan County Coal, LLC from Cliffs Natural Resources, Inc. The assets involved in the transaction were active underground and surface mines with metallurgical and thermal reserves, preparation and loading facilities and related infrastructure. We advised the client at each step of the transaction, including the initial offer and proposed letter of intent, due diligence, negotiating the purchase agreement, transition services agreement, permit operating agreement and certain third party agreements and efficiently executing the closing of the sale. The transaction, was the firm's fourth coal asset acquisition for this client and the entities associated with it since 2012.
Big Sandy Company, L.P. v. Sidney Coal Company and Cliffs Mining
Our firm represented Big Sandy, the owner of land in Eastern Kentucky, for breach of contract and other tort claims seeking proper payment of delinquent coal royalties and seeking to terminate a long term lease for failure to pay these royalties. In a split decision, an arbitration panel ruled that, while the lease could not be terminated, Sidney Coal Company had breached the lease and ordered Sidney to pay overdue royalties to Big Sandy.
Enforce Property Rights Against Natural Gas Transmission Pipeline Operator
Asset purchase of idled metallurgical coal mine
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.
Murphy v. Kanawha River Terminals, et al.
A young woman was killed when an empty coal truck braked suddenly and jackknifed across the center line of a two-lane highway. The plaintiff brought suit not only against the coal truck driver and the trucking company, but also the coal company whose coal the truck had been transporting that day and the coal terminal that had received the coal. The plaintiff alleged that the defendants were engaged in a civil conspiracy in that the coal company routinely loaded the coal truck over the legal weight, which loads were routinely received and accepted by the coal terminal. The causal theory was that the coal truck driver inflated his tires to account for the illegally heavy loads when full, which resulted in tires that were "overinflated" when the truck was empty, which in turn made the coal truck susceptible to jackknifing in hard braking situations. Extensive testing disproved the causation theory of the plaintiff's expert, and the case settled during jury selection.
West Virginia Flood Litigation
Thousands of individuals in Southern West Virginia filed property damage and personal injury claims in numerous courts alleging damages following a major storm in July 2001 that caused flooding throughout the state. The plaintiffs contend that the flooding was caused, at least in part, by the activities of coal mining, timbering, and other companies whose work requires alteration of the terrain. After referral to the West Virginia Mass Litigation Panel, and after certified questions were answered by the West Virginia Supreme Court of Appeals, the first of what are projected to be many trials commenced in March 2006. We settled all claims against our clients in all watersheds after a seven week trial, which will ultimately result in significant savings to the clients since the litigation is likely to continue for many years.
Lead Counsel in Leasing Transaction for Marcellus Shale Rights
We served as lead counsel for agent of landowners group comprising approximately 35,000 acres that included negotiating and drafting options to lease, and ultimately leases, then negotiating and representing the landowners group at closing for the paid-up lease of Marcellus Shale rights at $4,000 per acre, resulting in an approximately $140 million transaction.
Purchase of Working Interest in Marcellus Shale Wells
We served as local West Virginia counsel for a Houston firm representing a client that purchased a working interest in 18 Marcellus Shale wells already drilled, along with a working interest in 12 additional wells yet to be drilled. We assisted with a subset of the transaction closing documents, including the memorandums of lease that document and provide notice of our client’s ownership interests. This was a multi-million dollar transaction.
Secretary of Labor, Mine Safety and Health Administration, (MSHA), v. North American Drillers, LLC, Docket Nos. LAKE 2008-2-R and LAKE 2008-98 (February 12, 2012)
The Secretary of the Labor, Mine Safety and Health Administration (MSHA) issued a citation to our client, a national drilling company. After completion of the discovery process and conducting depositions to determine the citation’s validity, the Secretary vacated the enforcement action and civil penalty. We filed a declaratory judgment action with an ALJ which was denied. We then appealed, and the Federal Mine Safety and Health Review Commission upheld the mine operator’s argument that the Commission’s jurisdiction relating to a legal challenge, issued pursuant to Section 105(d) of the Mine Act, does not terminate upon the Secretary of Labor’s vacating of a citation and civil penalty.
National Coal Company v. Secretary of Labor, Mine Safety and Health Administration, (MSHA), Docket No. LAKE 2010-408-R (September 8, 2010)
The Secretary of the Labor, Mine Safety and Health Administration (MSHA) alleged that smoke from client’s coal stock pile, demonstrated the existence of a fire which constituted an accident under the Mine Act. The Secretary issued a control order under Section 103(k) of the Mine Act. We argued before an administrative law judge for the Federal Mine Safety and Health Review Commission that MSHA had failed to establish the existence of a fire, and therefore an accident did not occur. At trial, the judge ordered MSHA to vacate the control order. The case has been appealed by the Secretary and the briefs and requested oral arguments have been filed in front of the Review Commission on behalf of our client.
Secretary of Labor, Mine Safety and Health Administration, (MSHA) v. Banner Blue Coal Company, Docket Nos. VA 2011-367 and VA 2011-368 (March 12, 2010)
The Secretary of the Labor, Mine Safety and Health Administration (MSHA) issued two citations pursuant to 30 C.F.R. Section 75.512 requiring electrical equipment to be frequently examined, tested, and properly maintained. The citations alleged that the locking mechanism on our client’s electrical power source was not functioning properly. An ALJ upheld the violation, but vacated the “significant and substantial” designations attached to the violations. Additionally, the ALJ vacated a third citation issued pursuant to 30 C.F.R. Section 75.503 requiring electrical face equipment to be maintained in permissible condition. The ALJ asserted that the citation lacked validity.
Captive Audience Legislation in West Virginia (2010)
Testified on behalf of West Virginia Chamber of Commerce regarding Captive Audience Legislation in West Virginia and appeared on television program "Decision Makers" to debate issue against UMWA official and Delegate who proposed bill.
Mine Safety and Health
I am experienced in handling such matters both as in-house counsel for a large publicly traded company as well as in a private practice setting before the Federal Mine Safety and Health Review Commission for coal and limestone operations regulated by the Mine Safety and Health Administration.
Representation of Energy Industry Companies (2010)
Multi-National Package Delivery Business (DHL Express), 9-CB-11361
Represented in unfair labor practice charges against Teamster, Local 505 in violent strike situation.
Multi-State Utility Company
Represented company in West Virginia employment law cases, unfair labor practice charges and grievance arbitration hearings.
District 17, UMWA v. Marrowbone Development Company, 232 F.3d 383 (4th Cir. 2000)
Defended company in union's effort to overturn arbitration decision. Case eventually remanded to arbitrator in order to take additional evidence.
Flexsys America, L.P. v. Local Union 12610, 88 F.Supp.2d 600 (S.D. W.Va. 2000)
After hearing, arbitrator held ex parte conversation with employer advocate requesting company re-open hearing to investigate whether discharged employee's supervisor was "gay" which would influence arbitrator's decision. Obtained judgment to set aside arbitrator's decision due to discriminatory bias.
Superior Pocahontas Coal Company v. Island Creek Coal Company, 840 F.2d 11 (4th Cir. 1988)
Defended company in claim for pension plan withdrawal liability claim incurred by other company when it ceased operations, where adhesion contract claimed.
Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Marfork Coal Company, Inc., Docket Nos. WEVA 2006-788-R, WEVA 2006-789-R, WEVA 2006-790-R (September 27, 2006)
This case involved an appeal to the appellate level of the Federal Mine Safety and Health Review Commission of an Administrative Law Judge's (ALJ) decision to dismiss three notices of contests filed by the mine operator pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977 (Mine Act). The issue in the case was whether the mine operator had a right to file a notice of contest under Section 105(d) of the Mine Act if the operator was not seeking an immediate hearing.
The Commission concluded that the ALJ abused his discretion in dismissing the mine operator’s Section 105(d) notice of contest proceeding. The Commission held that the ALJ's decision contained a number of statements that were not supported by the record. The Commission further held that it must accommodate a mine operator’s presumptive right to contest citations and orders under Section 105(d) of the Mine Act, and that initiating discovery and settlement negotiations are valid reasons to bring and maintain a Section 105(d) contest proceeding. The Commission reversed the ALJ's dismissal of the Section 105(d) contest proceedings and reinstated the mine operator's notices of contest.
Secretary of Labor, Mine Safety and Health Administration (MSHA) v. Mid-America Mining
The U.S. issued a Section 105(c) citation to this Arkansas mining company, claiming that it fired its general manager after he has made formal complaints about the safety of the mine and its practices. This matter was settled on favorable terms to the client.
Secretary of Labor Mine Safety and Health Administration (MSHA) v. Oak Grove Resources, LLC. Docket No. SE 2007-194 (November 26, 2007)
This case involved, inter alia, a significant and substantial, high gravity and moderate negligence violation of 30 C.F.R. Section 75.604(b) issued by MSHA alleging that a permanent splice in the trailing cable on a shuttle car was not effectively insulated and sealed to exclude moisture.
The Administrative Law Judge (ALJ) held that the Secretary of Labor did not sustain her burden of proving the alleged violation was significant and substantial or of high gravity, and that the negligence should be reduced from moderate to low. The ALJ assessed a penalty of $250.00 for the violation.
Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, et al., 531 U.S. 57 (2000)
U.S. Supreme Court held that public policy considerations do not require courts to refuse to enforce an arbitration award ordering an employer to reinstate an employee truck driver even though he twice tested positive for drug use. Worked with now-Chief Justice John Roberts, who was retained to do oral argument to the Supreme Court.
District 29, UMWA v. Royal Coal Company, 786 F.2d 588 (4Cir. 1985)
Case involved company's obligation to provide health benefits to retired and disabled miners after expiration of 1981 Wage Agreement when it ceased all active mining and did not execute 1984 Wage Agreement.
American Energy Corp. v. Charles Datkuliak, et al.
Won declaratory judgment allowing our client to mine in excess of $4 million of coal over the objection of the gas well owner/operator. Successfully argued the case on appeal to the 7th Appellate District, and the Ohio Supreme Court refused to accept jurisdiction.
The case set multiple precedents for gas/oil well interference with coal rights. Despite the efforts of multiple oil/gas associations to have this decision reversed on appeal and in the Ohio Supreme Court, our client won at each stage of the procedure.
Anonymous Plaintiffs v. Large National Coal Company
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