Wednesday, October 23 — General Session
Noon Registration Opens – Bluegrass Ballroom Foyer, Lexington Center
Noon – 2 p.m. Executive Committee Meeting – Mary Todd Lincoln Room, Hyatt
2:00 – 2:10 p.m. Welcome and Introductions – Bluegrass Ballroom, Lexington Center
- Sharon O. Flanery, Foundation President, Steptoe & Johnson PLLC, Charleston, WV
- C. David Morrison, Program Chair, Steptoe & Johnson PLLC, Bridgeport, WV
- J. Kevin Ellis, Oil & Gas Chair, Antero Resources Corporation, Ellenboro, WV
- Eric R. Waller, Coal Chair, Patriot Coal Services LLC, Charleston, WV
2:10 – 3:00 p.m. The Energy Markets: Steam/ Met Coal, and Natural Gas
Where have the coal markets gone? Where is gas headed and will it be exported?
Can natural gas, and particularly shale gas, stay at these low levels? What caused the collapse of the metallurgical coal markets and how long will the market stay down? Are we likely to see any rebound in met and steam markets – export and domestic?
- John T. Boyd II, President and CEO, John T. Boyd Company, Canonsburg, PA
3:00 – 3:50 p.m. EPCRA Is Blowing Up: How the U.S. EPA Is Setting Its Sights on “Minimal Hazards & Minimal Risks” in the Mineral & Coal Industries
In the aftermath of a deadly gas leak in Bhopal, India, Congress passed the Emergency
Planning & Community Right-To-Know Act (EPCRA) to require companies that handle extremely hazardous chemicals and hazardous chemicals to register and ﬁle reports with emergency response providers and the public. But is sand a hazardous substance of concern to emergency response providers? Gravel? Rock salt? Slag? Or other substances with “minimal hazards and minimal risks”? The civil penalties that EPA is seeking from industry present a clear and present danger to industries who must pay for failures to ﬁle the forms required by EPCRA. This session will provide information on this growing trend and pointers on how to deal with it.
- Kevin P. Braig and Timothy D. Hoffman, Dinsmore & Shohl LLP, Columbus and Dayton, OH
3:50 – 4:15 p.m. Break
4:15 – 5:15 p.m. General Counsel Roundtable (may not be accredited in all states)
General Counsel are uniquely positioned at the intersection of business and law, giving them valuable insight on issues important to their clients. Here’s a lively discussion of the relationship between in-house and outside counsel, with advice on how outside counsel can effectively assist their in-house counterparts as clients navigate the issues facing energy producers.
- Moderator: Natalie N. Jefferis, EQT Midstream, Pittsburgh, PA
- Vaughn R. Groves, General Counsel, Alpha Natural Resources, Bristol, VA
- James A. Jarrell, General Counsel, Triana Energy, LLC, Charleston, WV
- David P. Poole, Sr. Vice President – General Counsel, Range Resources, Fort Worth, TX
- Donald C. Supcoe, General Counsel, Energy Corporation of America, Charleston, WV
- Jeffrey W. Wagner, General Counsel, Pardee Resources Company, Philadelphia, PA
5:30 – 6:30 p.m. Hosted Reception – Bluegrass Ballroom Foyer, Lexington Center
Thursday, October 24
7:30 a.m. Registration and Continental Breakfast – Bluegrass Ballroom Foyer
7:30 – 9:00 a.m. Law Student Attendees Hosted Breakfast – Kentucky Room, Hyatt
Coal Track – Thursday Morning — Bluegrass Room 1, Lexington Center
9:00 – 9:55 a.m. The New Mountain Feud: Environmental Groups vs. Mineral Owners
Environmental groups have long been litigating against coal companies, often with considerable success. Now they are targeting mineral owners, ﬁling a number of selenium liability suits directly against mineral owners, while obtaining agreements from coal companies not to engage in large scale surface mining – effectively sterilizing millions of tons of coal reserves for the foreseeable future. What environmental groups see as “a great victory for . . . Appalachia” is a stunning loss for mineral owners. This session will address legal questions that have not been answered, including the extent of responsibility environmental groups may have to mineral owners for causing coal companies to violate their coal leases, under theories of tortious interference, conspiracy, and intentional destruction of property rights.
- Richard J. Bolen, Huddleston Bolen LLP, Huntington, WV
9:55 – 10:45 a.m. Coal Transaction Agreements in the Current Coal Market
This presentation will focus on recent developments in coal sales transactions that have been observed in light of recent coal market volatility. As spot coal prices have declined in recent years, market volatility has also created a demand for shorter contract durations and inclusion of certain risk mitigation tools such as price reopeners, cost sharing provisions, and performance guarantees. Many domestic coal suppliers are venturing into international markets to compensate for reduced domestic demand for coal. The presentation will highlight areas of concern for the practitioner, including the Foreign Corrupt Practices Act, international arbitration rules, choice of law considerations, payment terms, and other considerations unique to international transactions.
- Daniel C. Garﬁnkel, Buchanan Ingersoll & Rooney PC, Pittsburgh, PA
10:45 – 11:00 a.m. Break
11:00 – Noon The Right to a De Novo Hearing in Mine Plan Disputes at Underground Coal Mines
Although the rule has long been recognized that operators are entitled to a de novo hearing in enforcement litigation before the Federal Mine Safety and Health Review Commission, at which the Mine Safety and Health Administration (MSHA)bears the burden of proof, where mine plan disputes arise, MSHA takes the view that the hearing is not de novo and that it need only show that its district manager did not act in an arbitrary or capricious manner or abuse his discretion in denying some or all of a plan. This has huge implications for an underground coal mine operator, not only regarding the scope of evidence and expert testimony that an operator is allowed to introduce at trial, but ﬁrst and foremost how the operator presents its proposed mine plan to the district manager in the ﬁrst place. Whether MSHA is entitled to this deferential standard of review was the subject of a 2012 decision in which, by a 3-2 majority, the Commission in Mach Mining sided with MSHA on the question. An appeal to the U.S. Court of Appeals for the 7th Circuit has been argued and is awaiting decision. If MSHA’s view is upheld,operators will be effectively left without a meaningful avenue for judicial relief in plan disputes; if the court reverses, the decision will go far to restoring faith in the independence of the Commission litigation process, as Congress intended.
- Daniel W. Wolff, Crowell & Moring LLP, Washington, DC
Noon – 1:45 p.m. Luncheon with Guest Speaker – Hyatt Regency Ballroom
- Charles R. Patton, President and COO, Appalachian Power, Charleston, WV
Coal Track – Thursday Afternoon
1:45 – 2:35 p.m. Coal Law Update
This session will cover recent litigation, including decisions by the Federal Mine Safety and Health Review Commission and labor-related decisions in the Patriot bankruptcy.
- Todd C. Myers, Rajkovich Williams Kilpatrick & True, PLLC, Lexington, KY
2:35 – 3:30 p.m. Respirable Dust Sampling: What MSHA Can Do to You Without New Rules
While the industry waits for the Mine Safety and Health Administration (MSHA) to promulgate new respirable dust standards, MSHA has taken signiﬁcant steps to ramp up the pressure on coal companies through the use of policy documents, ventilation plans, Section 110(c) investigations, and decertiﬁcation actions against individual dust samplers. This presentation will address those efforts and how they might be combatted or mitigated, and will address the research that has been done on the personal dust monitors that are the cornerstone of any potential new dust standard.
- R. Henry Moore, Jackson Kelly PLLC, Pittsburgh, PA
3:30 – 3:45 p.m. Break
3:45 – 4:35 p.m. Purchasing Assets from Bankrupt Sellers
This presentation analyzes some of the challenges associated with purchasing assets from a debtor in bankruptcy and the pitfalls to avoid. The program will highlight limitations and procedures regarding such purchases that are unique to the bankruptcy process. In addition, speciﬁc sections of the Bankruptcy Code will be examined to show how they can assist (or harm) potential buyers.
- Mary L. Fullington, Wyatt, Tarrant & Combs, LLP, Lexington, KY
4:35 – 5:30 p.m. Emerging Issues in Coal Dust Litigation
Coal operators have been dealing with a variety of lawsuits in recent years alleging claims for damages related to “fugitive” coal dust emissions from mines, processing plants, and coal trucks. These lawsuits have raised a host of novel and developing issues, including whether dust claims give rise to claims for assault and battery, the proper measure of damages for nuisance and trespass claims, and the availability of punitive damages. This presentation reports on several recent cases and provides advice to companies and practitioners dealing with coal dust claims.
- Brian M. Johnson, Bingham Greenebaum Doll LLP, Lexington, KY
Oil & Gas Track – Thursday Morning – Bluegrass Room 2, Lexington Center
9:00 – 9:35 a.m. Oil and Gas Update
An update on recent oil and gas cases, including court decisions on royalty class actions, the Ohio Dormant Mineral Act, preferential rights, dual purpose leases, challenges to the validity of oil and gas leases, and disputes over ownership.
- Kevin C. Abbott, Reed Smith LLP, Pittsburgh, PA
9:35 – 10:05 a.m. Misclassiﬁcations of Workers in the Oil and Gas Industry
A new “Misclassiﬁcation Initiative” launched by the IRS and U.S. Department of Labor is targeting employers with more audits and closer scrutiny. The IRS estimates that 80% of workers classiﬁed as “independent contractors” are actually employees, with a good bit of litigation in Texas about misclassifying drilling rig employees for overtime purposes, and a number of DOL audits of drilling companies, prompting more independent contractors — and their attorneys — to challenge their classiﬁcations in court. This session discusses the cases that have been decided, addresses what employers should do to avoid liability, and what an employer can do when it ﬁnds out that it has been violating the law, thereby owing large sums of money to its current employees.
- Joseph U. Leonoro, Steptoe & Johnson PLLC, Charleston, WV
10:05 – 10:55 a.m. HBP Leases: Issues with Acreage Held By Production
Given the economics of drilling a modern day horizontal well, the risk of engaging in new development under an “HBP lease” is magniﬁed. This presentation will explore the often murky waters of what acts are required to “hold” an oil gas lease in its secondary term and what can be done to assure a lease’s continued validity. We will analyze the issues under various lease terms and other provisions, including “so long as,” “dual-purpose,” and more modern forms which may have “drilling requirements” or “unitization and pooling” provisions.
- Britt A. Freund, Bowles Rice LLP, Canonsburg, PA
10:55 – 11:10 a.m. Break
11:10 – Noon Transportation of Natural Gas Liquids in Ohio
This session covers ambiguities in Ohio law (regulatory, tax and condemnation/eminent domain) that may affect mid-stream pipelines transporting mixed stream and ﬁnished products natural gas liquids, and suggests potential legislative remedies.
- Andrew J. Sonderman, Kegler Brown Hill & Ritter, LPA, Columbus, OH
Noon – 1:45 p.m. Luncheon with Guest Speaker
- Charles R. Patton, President and COO, Appalachian Power, Charleston, WV
Oil & Gas Track – Thursday Afternoon
1:45 – 2:35 p.m. Jurisdiction of the Oil and Gas Case
The advent of the shale plays brings oil and gas transactions and disputes to an increasing number of states, and despite the best efforts of artful scriveners, the forum and venue for dispute resolution often frustrates even the most seasoned oil and gas practitioners. Many are surprised to learn that Texas law doesn’t always apply! This presentation begins as primer on jurisdiction of matters before state and federal courts, discussing traditional diversity of citizenship jurisdiction, issues within the exclusive purview of state courts, and the dreaded state of the law on minimum contacts. The presentation evolves to consider unique issues such as jurisdiction under the Class Action Fairness Act, how to treat modern business entities like Master Limited Partnerships and offshore entities, Joint Operating Agreements (JOAs), and arbitrations. Jurisdiction at three levels – business organization, contract drafting, and litigation of disputes will be considered, along with practice points and examples from oil and gas jurisprudence from around the country.
- Kevin L. Colosimo, Burleson LLP, Canonsburg, PA
2:35 – 3:25 p.m. Recent Trends in Oil and Gas Transactions
With the advent of the new “shale world,” tremendous capital is required to develop these new reserves. Given these capital requirements and attendant risk in drilling new shale reserves, companies have raised capital through joint ventures versus traditional means such as bank debt or mezzanine capital. This discussion will focus on several different structures used in these transactions, including LLCs and Joint Development and Participation Agreements, and will address certain additional issues that can arise when a joint venture partner is a foreign oil company. Finally, the paper will address diligence and acquisition issues related to such structures, including title, contract, and environmental diligence, taxes, risk allocation, employees and service agreements.
- Arthur J. Wright and Lucas A. LaVoy, Thompson & Knight LLP, Dallas and Houston, TX
3:25 – 3:40 p.m. Break
3:40 – 4:40 p.m. Mineral Development in the Illinois Basin
This session focuses on development issues in the Illinois Basin – Illinois, Indiana, and Western Kentucky, including discussion of the recently passed Illinois Hydraulic Fracturing Regulatory Act, to facilitate development of oil and gas in the New Albany shale formation. The practical side of development – working with landowners in obtaining leases and surface access – will also be discussed.
- Chad J. Sullivan and Brandon S. Renner, Jackson Kelly PLLC, Evansville, IN
4:40 – 5:30 p.m. 404 Permitting and Enforcement for Oil and Gas Operations
This session covers permitting issues and federal enforcement (a priority area for EPA) for oil and gas operations in an era of heightened agency and third party scrutiny and larger Marcellus development sites.
- Allyn G. Turner, Spilman Thomas & Battle, PLLC, Charleston, WV
6:00 – 7:30 p.m. Reception – Bluegrass Ballroom Foyer, Lexington Center
Hosted reception for all speakers, registrants, and Kentucky Coal Association attendees
Friday Morning, October 25 – General Session – Bluegrass Ballroom, Lexington Center
7:30 – 8:30 a.m. Continental Breakfast
8:30 – 9:30 a.m. Multijurisdictional Practice: Lawyering Here, There, and Everywhere
The practice of law for most environmental and energy attorneys in the United States today is truly multijurisdictional, with legal services and their impacts in multiple states. It covers services by a lawyer physically present in a jurisdiction where he or she is not admitted to practice, and may include a lawyer’s “virtual presence” – phone, teleconference, e-mail, Internet, etc. MJP raises serious issues such as potential unauthorized practice of law, violation of ethics rules, and choice of law for ethics rules and disciplinary proceedings. This session will cover the latest developments in this evolving area of the law.
- David G. Ries, Clark Hill Thorp Reed, Pittsburgh, PA
9:30 – 10:45 a.m. Setting the Right Balance: Exploring the Challenges and Considering Policy Resolutions to Common Conﬂicts Between Coal Operators and Oil and Gas Operators
This session opens with an overview of the law in Kentucky, Ohio, Pennsylvania, and West Virginia vis-à-vis coal and oil and gas development, followed by panelists discussing what’s really happening with surface sharing and subsurface issues, how folks have worked through the existing legal regime, and their thoughts on policy and legal changes to facilitate development.
- Ryan J. Morgan, Moderator, Steptoe & Johnson PLLC, Charleston, WV
- Michael O. Conley, KRCC Oil & Gas, LLC, Hazard, KY
- A. George Mason, George Mason Law Firm, PSC, Lexington, KY
- Richard T. Miller, Coal and Gas Energy Services, LLC, Ellicott City, MD
- Roger L. Nicholson, Attorney at Law, Charleston, WV
10:45 a.m. Adjourn