Experience
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.
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
Rate Cases
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
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.
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. 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.
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
Arbitration
Arch Coal v. Tuco, Inc.
Coal Producer v. Electric Utility
Coal Supplier Claims
Corporate Merger
Corporate Reorganization and Membership Unit Sale
Expert Witness
Former Client v. Kentucky Law Firm
Large National Coal Company v. Power Producer
Long-Term Extension to Coal Supply and Transportation (Rail and Barge Pieces) Agreement for Large East Coast Utility
This was a changing market conditions driven commercial agreement addressing the purchasing utility's desire to control costs and the selling entity's desire to obtain a solid commitment for base load tons for substantial mining operations. The value of the amended package of coal supply and transportation agreements was in excess of $75 million.
I served as the client's primary counsel in the negotiation and preparation of definitive agreements to accomplish the client's goal of achieving the extension of the term of an agreement otherwise set to expire on terms and conditions favorable to the client, including pricing and quantity provisions.
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