February 2009
Prepared by Steptoe & Johnson PLLC

Ohio Valley Environmental Coalition, Inc. v. Hobet Mining, LLC
Civil Action No. 3:08-0088, 2008 WL 5377799 (S.D.W. Va. 2008)
J. Kevin Ellis, Energy Practice Group

The Ohio Valley Environmental Coalition, Inc. and the West Virginia Highlands Conservancy Inc. ("Plaintiffs") commenced a citizen suit in the U.S. District Court for the Southern District of West Virginia, seeking injunctive relief and civil penalties against Hobet Mining, LLC (Hobet) for repeatedly exceeding effluent limits for selenium as specified in its mining permits. Only one day before the expiration of the mandatory 60-day notice period for the citizen suit, the West Virginia Department of Environmental Protection (WVDEP) filed suit, thus barring Plaintiffs' citizen suit under the Clean Water Act (CWA) and the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA). Hobet filed its motion to dismiss the complaint on jurisdictional grounds. In its decision granting mixed relief, the court held that Plaintiffs' citizen suit was properly initiated because federal jurisdiction existed at the time of filing and when the WVDEP's prosecution of Hobet was not diligent. However, because the WVDEP "increased the pace and effort of its prosecution" after Plaintiffs filed suit, and ultimately resolved Hobet's violations through a Consent Decree, Plaintiffs' case was rendered partially moot.

The court found that the WVDEP was not "diligently prosecuting" the case because the WVDEP had made no effort to proceed expeditiously to a final resolution. The court noted that the WVDEP's case had been dormant for over a year and was subject to dismissal at the time that Plaintiffs filed their complaint in this case. Furthermore, the only actions taken by the WVDEP in its case were the filing of two amendments-the first preventing Plaintiffs from bringing a citizen suit for the alleged permit violations and the second preventing Plaintiffs from filing a citizen suit under WVSCMRA. The court found that "these two amendments expanded the government's claims against Hobet, [but] did nothing to progress the case towards resolution . . . . On the contrary, each of these amendments delayed the ultimate resolution of permit violations by impeding a citizen suit, which may have progressed more quickly." Id. at *5. The court determined that the WVDEP's progress in the suit was not due to WVDEP's enforcement strategy, but rather a result of the motivation created by Plaintiffs filing a complaint in the case.

Nonetheless, the court ultimately determined that Plaintiffs' claims for declaratory and injunctive relief were moot on the grounds that "the WVDEP was within its discretion to establish deadlines and work with Hobet to develop a plan for treatment" and that there was "no realistic prospect that Hobet would still be in violation of its selenium limits on the final compliance date" in the Consent Decree. Id. at *8. Furthermore, the court concluded that the Plaintiffs' claims for civil penalties for Hobet's violations of permit effluent limits were moot, because the penalties set forth in the Consent Order "do not leave Hobet in a position of competitive advantage [and] there is no realistic prospect that Hobet's violations will continue after the completion of the interim schedule for compliance." Id. at *9. However, the court's conclusion applied only to the extent that the violations occurred during the period covered by the Consent Order. The court ordered the Plaintiffs to submit a supplemental brief as to the Plaintiffs' claims for violations by Hobet after the date covered by the Consent Decree.

Equitable Gathering Equity, LLC, et al. v. Dynamic Energy, Inc.
Civil Action No.: 5:07cv-00726, 2009 WL 37186 (S.D.W.Va.)
Thomas J. O'Neill, Esquire, Energy Practice Group

Plaintiffs conduct natural gas operations, which cross land where Defendant conducts mining and timbering operations. Defendant made inquiry regarding relocation of two pipelines, but ultimately declined to execute relocation agreements. Due to the threat posed to a 12-inch pipeline by Defendant's mining activity, Plaintiffs unilaterally relocated the pipeline. After Defendant ruptured a separate, two-inch pipeline in the course of its timbering operations, Plaintiffs relocated that line as well and filed suit, seeking compensation for the costs of relocating the lines and for lost gas.

Plaintiffs filed a motion for summary judgment. U.S. District Court Judge Thomas E. Johnston applied the West Virginia Supreme Court of Appeal's ruling in Quintain Dev., LLC v. Columbia Natural Res., Inc., 210 W.Va. 128, 556 S.E.2nd 95 (W.Va. 2001) to find Defendant responsible for the bearing costs of pipeline relocation. The court found that absent explicit provision to the contrary, Defendant knew of the existence of the pipelines (knowledge in this case was both actual and constructive), Defendant altered the status quo (in this case, by conducting mining and timbering operations above the pipeline rights-of-way), and Defendant benefited from the relocation (Defendant's benefit was defined as improved safety conditions). Summary Judgment was granted to Plaintiffs.

Coal River Mountain Watch, et al., v. Kempthorne, et al.
Civil Action No.: 1:08-cv-02212-HHK (U.S. District Court for the District of Columbia)
Thomas J. O'Neill, Energy Practice Group

Plaintiffs, environmental organizations based primarily in Appalachia, recently filed suit to block implementation of new rules promulgated by the United States Department of the Interior Office of Surface Mining Reclamation and Enforcement (OSM). These new rules would modify stream buffer zone rules ("SBC rules") by eliminating the 100-foot buffer zone requirement and substituting it with a mandate that streams and their buffer zones should not be disturbed "unless it is not reasonably possible to so do." Further, the rule change exempts valley fills and other stream-filling activities from the scope of the rule. OSM has taken the position that such an exemption brings the regulation into line with the intent of the Surface Mining Control and Reclamation Act (SMCRA), based upon legislative history. The revised regulations took effect January 12, 2009 and can be found at 73 Fed. Reg. 75,814 (Dec. 12, 2008).

Plaintiffs argue in their complaint that the revised stream buffer zone rules violate the SMCRA mandates to minimize environmental damage and to protect the health and safety of the public. Further, Plaintiffs characterize the rule change as arbitrary and capricious, noting that valley fills and overburden disposal practices were not exempted under original OSM rulemaking following passage of the SMCRA. OSM is alleged to have acted without sufficient scientific or evidentiary bases. Plaintiffs further argue that the Environmental Protection Agency, in making its concurrent determination for the new regulations, violated public notice, review and comment requirements, and violated its responsibility under the Clean Water Act to prevent conflict between federal mining regulations and water quality standards. Plaintiffs ask the Court to vacate the new rules.

BBC Granted Temporary Restraining Order to Halt Exploration
Civil Action No.: 09-cv-00019 (U.S. District Court for the District of Columbia)
Kenneth L. Carroll, Energy Practice Group

Bill Barrett Corporation (BBC) filed a complaint with the U.S. District Court for the District of Columbia seeking judicial review of a decision of the Bureau of Land Management (BLM) of the U.S. Department of Interior authorizing the issuance of a federal coal exploration license to BTU Western Resources, Inc. (BTU). The license was issued on December 30, 2008.

BBC produces coalbed natural gas (CBNG) from approximately 108 wells in Wyoming from which it obtained the rights through numerous federal oil and gas leases. BTU intends to drill coal exploration core holes in and around 11,000 acres, much of which overlies, or is in close proximity to, the 108 wells BBC currently has under CBNG lease. BTU did not hold either federal coal leases or federal exploration licenses for the area at the time it submitted its application to the BLM for an exploration license.

BBC produces CBNG by a process that relies on negative reservoir pressure in the coal seam. BBC asserts that drilling exploration core holes will allow air to enter the coal seam and migrate to BBC's nearby producing wells. BBC maintains that the damage will be irreparable because as soon as oxygen is detected in BBC's gas stream the producing wells will automatically shut down and then it will be impossible to purge the wells and the producing reservoir of oxygen. Accordingly, BBC petitioned the BLM to reject BTU's license application but the protest was dismissed for lack of evidence demonstrating the threat of oxygen contamination to the wells.

BBC was granted a temporary restraining order stopping BTU from beginning exploration until at least January 17, 2009. As of January 30, 2009, the Court has not ruled on BBC's request for a preliminary injunction.

MSHA Promulgates New Rule for Coal Mine Dust Personal Monitors.
Marsha K. Hudkins, Energy Practice Group

On January 16, 2009, the Mine Safety and Health Administration (MSHA) proposed a new rule to establish performance-based and other criteria for the approval of the "continuous personal dust monitor." The monitor, to be worn by miners, is a new innovation that has passed extensive testing for accuracy, ergonomics and durability. It continuously monitors exposure to respirable coal mine dust levels during the miner's actual shift as well as at the end of the shift. This will enable operators to quickly identify and immediately respond to high dust exposures, which is intended to help prevent occupational lung disease. The proposed rule also allows for the continued innovation of "continuous personal dust monitor" designs. The full text of the proposed rule is at www.gpo.gov/su-docs/aces/fr-cont.html.

Comments to the proposed rule can be submitted as follows: (1) via the Federal rule making portal (http://www.regulations.gov); (2) electronic mail (MSHA-Comments@dol.gov); (3) facsimile (202.693.9441); (4) regular mail (MSHA, Office of Standards, Regulations and Variances, 1100 Wilson Blvd., Room 2350, Arlington, VA 22209-3939); and (5) hand or courier delivery (MSHA, Office of Standards, Regulations and Variances, 1100 Wilson Blvd., Room 2350, Arlington, VA 22209-3939 - sign in at receptionist's desk on the 21st Floor). All comments must specify "RIN 1219-AB61" and will be accepted until 12:00 p.m. E.S.T. on March 17, 2009.

Comments received by MSHA can be accessed electronically at http://wwwmsha.gov under the Rules and Regs link.