Wednesday, October 22 — General Session
7:30 a.m. Registration Opens
8:20 – 8:30 a.m. Welcome and Introductions
- Kevin K. Douglass, Foundation President, Babst Calland, Pittsburgh, PA
- Timothy J. Hagerty, Program Chair, Frost Brown Todd LLC, Louisville, KY
- Nick S. Johnson, Coal Chair, Alpha Natural Resources, Julian, WV
- Amber Nisbet Hodgdon, Oil & Gas Chair, EnerVest Operating, LLC, Charleston, WV
8:30 – 9:20 a.m. Proposed “Waters of the United States” Rule Under the Clean Water Act
The U.S. EPA and the U.S. Army Corps of Engineers recently proposed a rule that would replace the deﬁnition of “navigable waters” and “waters of the United States” in regulations for all Clean Water Act (CWA) programs. The agencies are accepting comments on the rule through October 21, with a ﬁnal rule anticipated sometime before the end of 2015. Ms. Duncan will discuss implications of the proposal for the oil and gas, mining, and electric power industries, including new categories of “waters” and ambiguities that are likely to cause regulatory uncertainty and affect project planning.
- Deidre G. Duncan, Hunton & Williams, LLP, Washington, DC
9:20 – 10:10 a.m. Is the Sky Falling? Never Mind “Chicken Little” – Pay Attention to the Lesser Prairie Chicken and the Endangered Species Act!
The Endangered Species Act has become a frequently used tool by opponents of mining and development. Once a species is listed as endangered, vast areas can be immediately off-limits to production. For example, the Lesser Prairie Chicken was recently listed as “threatened” under the Endangered Species Act. This can result in potentially catastrophic ramiﬁcations for the energy and mining industry. This presentation will identify potential ramiﬁcations of ESA listings and possible citizen suits on mining and development; explain the ESA’s “critical habitat” and “incidental take” provisions; include a discussion on pending litigation involving these laws and their potential impact on the energy and mining industries; and focus on practical and proactive ways to avoid traps for the unwary.
- Michael A. Oropallo, Hiscock & Barclay, Syracuse, NY
10:10 – 10:25 a.m. Break
10:25 – 11:15 a.m. Environmental Crisis Management
Babst Calland lawyers Don Bluedorn and Anne Blankenship are Special Environmental Counsel for Freedom Industries, Inc. regarding the January 2014 industrial chemical (MCHM) release into the Elk River in Charleston, WV. They will share some experiences with the Freedom matter and other environmental crises in the Tri-State Area, and will present a practical road map for navigating environmental crisis management issues
- Donald C. Bluedorn II and Anne C. Blankenship, Babst Calland, Pittsburgh, PA
11:15 a.m. – 12:15 p.m. Landman at the Door (ethics)
This presentation focuses on the role of the landmen and lawyers in modern oil, gas and minerals leasing, highlighting ethical situations these professionals face every day in the ﬁeld. Through an examination of ethical codes of conduct (AAPL and Model Rules of Professional Conduct) and hypothetical scenarios drawn from recent jurisprudence, we’ll consider where prudent negotiating ends and ethical violations begin in the leasing process. Finally, we’ll offer practitioners’ thoughts on how best to handle cases involving allegations of ethical misconduct by landmen.
- Kevin L. Colosimo, Burleson LLP, Pittsburgh, PA
12:15 – 1:45 p.m. Lunch Break on Your Own
1:45 – 2:35 p.m. Grid Reliability and Capacity Markets
This presentation will offer a historic perspective on electric deregulation and how PJM, the largest and most liquid power market in North America, has evolved. Detailed insight will be offered in the areas of energy pricing, capacity values, stakeholder processes and regulatory oversight. Current developments, which are the result of last winter’s Polar Vortex, will also be discussed in detail.
- Robert D. Gabbard, PPL Energy, Allentown, PA
2:35 – 3:40 p.m. Clean Power and Carbon: A View from the States
On June 2, 2014, President Obama unveiled a “Clean Power Plan” intended to cut carbon pollution and protect the environment, while maintaining an affordable, reliable energy system. The plan contains numerous strategies designed to curb carbon emissions, including directing the US EPA to establish carbon emission standards for both new and existing power plants. Such measures are of particular importance in states, such as Kentucky, Ohio, and West Virginia, that rely heavily on coal for both power production and economic vitality. This panel will evaluate the practical implications of this plan and its associated regulations for both energy companies and power consumers — especially in coal-dependent states — and will evaluate various options being considered by the states to meet the proposed requirements. This discussion is particularly important in light of the plan’s stated goal to provide ﬂexibility to the states in determining how best to meet the plan’s carbon reduction goals.
- Sean Alteri, Director, Division for Air Quality, Commonwealth of Kentucky, Frankfort, KY
- James M. Van Nostrand, Associate Professor and Director, Center for Energy and Sustainable Development, West Virginia University College of Law, Morgantown, WV
- Robert Hodanbosi, Chief, Division of Air Pollution Control, Ohio Environmental Protection Agency, Columbus, OH
3:40 – 3:55 p.m. Break
3:55 – 4:45 p.m. Lessons Learned from the Use of Correlative Health Studies Against the Coal Industry: Is the Oil and Gas Industry Next?
Several peer-reviewed studies have asserted that surface coal mining is correlated with adverse health effects in nearby communities. Environmental groups have cited these studies in lawsuits and permit challenges against the coal industry. Now, these “scientists” appear poised to produce similar studies targeting the oil and gas industry. This presentation will summarize these publications, show how the studies have been used against the coal industry and could be used against the oil and gas industry, and explain how these studies have been excluded from cases where they were offered as evidence.
- Aaron S. Heishman and Jennifer L. Hughes, Jackson Kelly PLLC, Charleston, WV
4:45 – 5:45 p.m. Internal Investigations of Employee Misconduct — Ethical Considerations
There is a myriad of ethical issues that arise when an in-house attorney or an outside attorney conducts an internal investigation of employee misconduct. Is the investigation itself protected by the work product doctrine? Do interviews with management employees fall within the attorney-client privilege? Is the report privileged? May the attorney who does the investigation be compelled to testify? If the attorney is a witness, how far does the waiver of the attorney-client privilege go? May there be discovery of other matters on which the attorney has worked? Are historical billing records of the attorney’s ﬁrm now fair game for discovery? If the attorney testiﬁes, may his or her ﬁrm still litigate the subsequent case? May the attorney be dragged into later, unrelated litigation because he/she did not do the investigation? This topic will explore these and other similar issues that may arise when an attorney is asked to conduct an internal investigation.
- Laura Patterson Hoffman, Steptoe & Johnson PLLC, Lexington, KY
- C. David Morrison, Steptoe & Johnson PLLC, Bridgeport, WV
5:45 – 7:00 p.m. Hosted Reception
Thursday, October 23
7:30 – 8:30 a.m. Law Student Breakfast
Breakout Sessions – Oil and Gas
8:30 – 9:20 a.m. Oil and Gas Update
The annual update of litigation and regulatory activity affecting the oil and gas industry.
- Kevin C. Abbott, Reed Smith LLP, Pittsburgh, PA
9:20 – 10:10 a.m. Thinking Horizontally: Interpreting Traditional Oil and Gas Documents in a Horizontal World
This session will identify select issues in which conventional language in leases and joint operating agreements creates interpretive challenges when applied to horizontal development. The extent to which the new AAPL Horizontal addendum addresses core issues will also be discussed.
- Russell L. Schetroma, Steptoe & Johnson PLLC, Meadville, PA
10:10 – 10:25 a.m. Break
10:25 – 11:15 a.m. Wellbore Assignments of Oil and Gas Leases
This topic will present a survey of the limited case law related to limited assignments of oil and gas leases, including depth limitations, proration unit limitations, and especially wellbore-only limitations. The presentation will address the rights conveyed and reserved in limited assignments, including the rights to deepen the well vertically, extend a lateral horizontally, the right to recomplete in uphole formations, and the right to drill additional or replacement wells. Given the dearth of case law available, the presentation will also address best practices in negotiating and drafting limited assignments.
- Frank Hinton, Elias, Books, Brown & Nelson, Oklahoma City, OK
11:15 a.m. – Noon Implied Covenants in Oil and Gas Leases in the Appalachian Basin
The obligations and remedies of the parties to an oil and gas lease are generally determined by the plain language of the document. Despite this, courts of all jurisdictions have implied certain covenants into oil and gas leases. This presentation will examine implied covenants in oil and gas leases and what these covenants mean for the lessor and the lessee. This presentation will focus on the implied covenants for reasonable development and for further exploration, and will address the meaning of these covenants, whether an implied covenant can be read into a particular lease, what constitutes a breach of an implied covenant, and the penalties for breach. The presentation will include a discussion of key cases in the Appalachian Basin.
- Lija Kaleps-Clark, Director of Land and Legal Services, The Energy Cooperative, Columbus, OH
Noon – 1:30 p.m. Lunch Break on Your Own
1:30 – 2:20 p.m. Midstream Process Plant Siting – Legal Considerations
To reach markets, wet gas from the Marcellus and Utica Shale plays must be transported and processed, including the recovery of natural gas liquids. This presentation will address legal considerations that arise during the siting of midstream process plant facilities and related pipeline facilities. Using Utica processing activities in Ohio as a basis, issues such as plant permitting, building permitting, road use maintenance agreements, gas processing agreements, and agency jurisdiction will be reviewed with comparison references made for areas in the Appalachian Basin that have existing processing and/or future processing needs.
- Michael J. Settineri, Vorys Sater Seymour and Pease LLP, Columbus, OH
2:20 – 3:10 p.m. Midstream Assets in Appalachia
The need for gathering and other midstream assets in Appalachia, especially throughout the Marcellus and Utica plays, is undeniably on the rise. All indicators are that this will be the case for the foreseeable future as producers and midstream companies plan and invest to “move to market” the constantly increasing supply of oil, dry gas and NGLs (natural gas liquids) ﬂowing from the area. Not to put too ﬁne of a point on it, but the key cog in this equation is more pipelines and the acquisition of the land and/or land rights with which to place them. This presentation will give an overview of the legal means and mechanisms with which this is accomplished, and some of the pitfalls and issues in operating in this environment. For example: rights-of-way, surface use agreements and other midstream real property rights – their acquisition, proper documentation, etc.; potential use of eminent domain; and use of existing easements/expansion of easement issues.
- Lawrence E. “Buddy” Goodwin, Stoll Keenon Ogden PLLC, Canonsburg, PA
3:10 – 3:25 p.m. Break
3:25 – 4:40 p.m. Oil and Gas Lease Litigation
Oil and gas lease busting litigation has increased exponentially in recent years throughout Pennsylvania, West Virginia, and Ohio. In order to mount a successful defense to such litigation, it is imperative to have a clear understanding of how the key provisions contained in the oil and gas lease operate and what mechanisms landowners are using to try to invalidate those leases. This presentation will identify how Pennsylvania, West Virginia, and Ohio courts construe key provisions contained in primary term, secondary term, and no term leases, and will discuss additional lease provisions that allow a lease to be perpetuated into its secondary term. The presentation will also provide an analysis of the best practices to be utilized when defending lease busting litigation.
- Renee V. Anderson, Tucker Arensberg, Pittsburgh, PA
- Margeaux Kimbrough, Kegler, Brown, Hill + Ritter LPA, Columbus, OH
4:40 – 5:30 p.m. Surface Owner Efforts to Prevent Development
As the shale plays in the Appalachian Basin mature, an increasing number of surface owners ﬁnd their properties subject to oil and gas leases to which they are not a party and to development over which they have little control. This presentation addresses the various means and theories to which such surface owners are turning to control development of their properties or to block it altogether, and what operators can do in response. The presentation will focus on the limits of self-help, the availability of extraordinary remedies, damages for delays caused by surface owners and important issues to watch for in such disputes, such as lease terms, lease tolling and the life span of essential permits. The presentation will include a discussion of key and recent cases.
- Kevin M. Gormly, Vorys Sater Seymour and Pease, Pittsburgh, PA
5:30 – 7:00 p.m. Hosted Reception for EMLF and Kentucky Coal Association
Thursday, October 23
Breakout Sessions – Coal Track
8:30 – 9:20 a.m. MSHA Respirable Coal Mine Dust Rules
The ﬁnal MSHA respirable coal mine dust rules took effect on August 1. They are very burdensome to the point that, in our view, they are technologically and perhaps economically infeasible. They are surely very costly — and may well drive a number of marginal operations out of business.
- Edward M. Green and Daniel W. Wolff, Crowell & Moring LLP, Washington, DC
9:20 – 10:10 a.m. Trends in Mine Safety Enforcement
This presentation provides a statistical analysis of the mandatory safety standards that have been cited by the Mine Safety & Health Administration (MSHA) in 2013 and the ﬁrst half of 2014. The top ﬁve cited standards are identiﬁed and compared to prior years. The overall number of citations and assessed monetary amount for 2013 is quantiﬁed, while the frequency of 104(d) enforcement actions and “ﬂagrant violations” is outlined. Finally, the ﬁve mandatory safety standards most frequently cited in 2013 will be discussed.
- Jeffrey K. Phillips, Steptoe & Johnson PLLC, Lexington, KY
- Jonathan R. Ellis, Steptoe & Johnson PLLC, Charleston, WV
10:10 – 10:25 a.m. Break
10:25 – 11:10 a.m. Federal Black Lung: Back to the Future (with apologies to Michael J. Fox, et als!)
This presentation explore the amendments to the Federal Black Lung Act contained in the PPACA (Obamacare) resurrecting statutory provisions deleted in 1981, and on litigation of claims under those amendments on top of the regulatory overhaul of 2001. It highlights the litigation concerning the validity of the PPACA amendments and 2001 regulations, and discusses the actions by the Department of Labor to liberalize the award process. The presentation also examines pending and potential legislative and regulatory actions and initiatives.
- Timothy W. Gresham, Penn Stuart & Eskridge, Abingdon, VA
11:10 a.m. – Noon The Nacco Case
The Nacco case provides for an exception to the principle that an agent’s conduct is imputed to the operator for negligence purposes when the agent’s actions were unforeseen and endangered no one but the agent. This presentation includes a discussion of case law holding that the Nacco defense only applies to 104(a) citations, but not when an unwarrantable failure to comply has been alleged. Also discussed will be whether an individual agent’s conduct can be imputed to the operator for purposes of determining whether an operator’s conduct was ﬂagrant.
- John M. Williams, Rajkovich Williams Kilpatrick and True, PLLC, Lexington, KY
Noon – 1:30 p.m. Lunch Break on Your Own
1:30 – 2:20 p.m. Uncertain Waters: Legal Developments in Clean Water Act Permitting
for Coal Mining Operations
The changing legal landscape surrounding Clean Water Act Section 402 (NPDES) and Section 404 (dredge and ﬁll) permitting programs continue to present challenges (and potential opportunities) for coal mining operations. This presentation will explore these signiﬁcant judicial and regulatory developments, including the recent decision upholding EPA’s and the Corps’ Enhanced Coordination Procedures for issuing Section 404 permits, as well as EPA’s “guidance” on limiting conductivity from coal mines through NPDES permits. It will also address developments in EPA’s retroactive veto authority, the changing scope of permit shield protection for mining operators, and the implications of proposed rulemaking to “clarify” the scope of Waters of the United States. Finally, the presentation will provide updates on signiﬁcant state-level permitting issues, including the status of state standards for selenium, and efforts by environmental groups to enforce narrative standards for conductivity.
- Emily C. McKinney, Frost Brown Todd, Louisville, KY
2:20 – 3:00 p.m. Coal Law Update
The annual update on decisions and regulations impacting the coal industry.
- Richard M. Wallace, Spilman, Thomas & Battle, PLLC, Charleston, WV
3:00 – 3:15 p.m. Break
3:15 – 3:50 p.m. Johnson Family Properties v. Jewell
On June 13, the federal district court enjoined a mining permit issued by Kentucky because the coal company had failed to secure the written consent of 100 percent of the surface owners. Prior to this decision, Kentucky only required the consent of a single surface owner for a mining permit to issue. The decision presents serious issues for landowners and operators — ranging from the impact on pending and contemplated permits to the status of existing Kentucky mining permits issued with the consent of less than all the surface owners, to the ability of plaintiffs to avoid state regulatory programs and challenge permitting decisions in federal court.
- Warren J. Hoffmann, Frost Brown Todd LLC, Lexington, KY
3:50 – 4:40 p.m. Shipping Coal Through Safe Harbors: Application of the Bankruptcy Code Safe Harbors to Coal Supply Agreements
The Bankruptcy Code contains a number of “safe harbors” which exempt counterparties to certain ﬁnancial and commodity contracts from the effect of the automatic stay, the trustee’s avoidance powers and other powers typically granted to bankrupt companies. This presentation reviews the scope of these safe harbors and examines whether particular coal supply agreements and/or particular parties to coal supply agreements ﬁt within the safe harbors.
- Daniel I. Waxman, Wyatt, Tarrant & Combs LLP, Lexington, KY
4:40 – 5:30 p.m. Boiling Down the Boilerplate: Everything You Always Wanted to Know About Standard Provisions in Coal Contracts (But Were Too Bored to Ask)
An examination of the history, meaning, and (often unintended) consequences of boilerplate language and terms relegated to the ﬁnal pages of our coal supply agreements.
- Justin W. Ross, Wyatt, Tarrant & Combs LLP, Lexington, KY
Mineral Law Conference Adjourns
5:30 – 7:00 p.m. Joint Reception with EMLF and Kentucky Coal Association