Wednesday, October 21
7:00 a.m. Registration Opens
7:00 – 9:00 a.m. Continental Breakfast
8:45 – 9:00 a.m. Welcome and Introductions
- G. Brian Wells, Foundation President, Wyatt, Tarrant & Combs, LLP, Lexington, KY
- Kathy G. Beckett, Program Chair, Steptoe & Johnson PLLC, Charleston, WV
- Britt A. Freund, Oil and Gas Chair, Bowles Rice LLP, Canonsburg, PA
- R. Clay Larkin, Coal Chair, Dinsmore & Shohl LLP, Lexington, KY
9:00 – 9:50 a.m. Is the Supreme Court Changing the Scope or Breadth of the Chevron Deference Doctrine?
This presentation will canvass recent administrative law cases from the Supreme Court of the United States (SCOTUS), primarily during the time of Chief Justice John Roberts since 2005, to analyze the apparent ﬂuidity in foundational principles of administrative law and separation-of-powers, and engender discussion whether the judiciary is becoming less deferential to Executive agencies and the validity of their regulations. If a judicial trend of less deference is emerging, what could this mean for newly proposed regulations from the Environmental Protection Agency (EPA), or other Executive Branch agencies, and could such regulations become more vulnerable to legal challenge? Even if a trend is emerging, how far is the judiciary likely to go in applying a less deferential analysis of Executive Branch regulations?
- Douglas L. McSwain, Wyatt, Tarrant & Combs, LLP, Lexington, KY
9:50 – 10:40 a.m. Litigation Affecting the Energy Industry
This session provides a critical analysis of signiﬁcant cases which have or will impact the energy sector.
- J. Thomas Lane, Bowles Rice LLP, Charleston, WV
10:40 – 11:00 a.m. Break
11:00 – Noon Professional Ethics: Examples from Constitutional History
Emphasis upon ethical professional behavior is a good idea, despite the laments of lawyers everywhere that they “have to sit through another boring ethics presentation.” But ethics is a subject that is anything but boring — there are so many good examples of bad behavior from which we can learn. Indeed, as we shall see, many prominent ﬁgures from our constitutional history might have beneﬁtted from studying professional responsibility, and from attending an occasional ethics CLE course. This presentation will use several of these colorful examples from our constitutional heritage to illustrate ethical pitfalls that were as common “back in the day” as they are now
- Professor Stewart L. Harris, Appalachian School of Law, Grundy, VA
Noon – 1:15 p.m. Hosted Luncheon and Guest Speaker
- The Honorable Patrick James Morrisey, Attorney General of West Virginia, Charleston, WV
1:15 – 2:00 p.m. The Foreign Corrupt Practices Act
How about these headlines? “Former Petrobras Exec Claims Bribes from Singapore Shipbuilders.” Or ”Brazilian Police Arrest 2 Construction Moguls and 3 Other Senior Executives in Petrobras Fallout.” Or maybe “Brazil’s Electrobras Hires Lawyers to Investigate Potential Violations of Foreign Corrupt Practices Act and Brazil’s Anti-Corruption Law.” These are three true stories from only one country. If your company does business outside the U.S. or with companies or individuals outside the U.S., you and your companies may have unknowing exposure to serious civil and criminal sanctions from the U.S. or other governments. This presentation gives a summary of anti-corruption statutes across the globe, and then discusses ways to minimize your risks. For example, a payment to a Lower Slobovian public ofﬁcial to do some ministerial act may be perfectly legal and a normal way of doing business in Lower Slobovia, but it may be an illegal jail-time offense under American law. We will discuss common sense, real life solutions to how you get things done without hearing a cell door slam shut behind you.
- William D. Wilmoth, Steptoe & Johnson, PLLC, Wheeling, WV
2:00 – 2:45 p.m. Wage and Hour Issues in the Energy Industry
The United States Department of Labor has an ongoing initiative focused on the misclassiﬁcation of American workers, whether the situation involves an employee purportedly misclassiﬁed as an independent contractor or an employee allegedly misclassiﬁed as exempt from federal overtime regulations. In fact, the agency has targeted the oil and gas industry for wage and hour investigations, resulting in the recovery of back pay and penalties of over $4.5 million in the Marcellus region alone over the past few years. This presentation will outline the DOL’s efforts and areas of focus, as well as providing perspective about how to avoid the pitfalls of compliance with the Fair Labor Standards Act.
- Erin E. Magee, Jackson Kelly, PLLC, Charleston, WV
2:45 – 3:00 p.m. Break
3:00 – 4:00 p.m. EPA’s Clean Power Plan
EPA has released its pre-published ﬁnal Clean Power Plan (CPP) and the proposed Federal Implementation Plan for the CPP. This discussion will provide some highlights of the over 3,000 pages that comprise the CPP to include: anticipated impacts of the plan on the regulated EGUs, industrial consumers of electricity, those who provide coal and natural gas as a raw material, and the state agencies tasked with implementation. Also discussed will be strategies for managing the CPP to include “just say no,” “just use your own plan” and “just ﬁle the lawsuit.”
- Stephen L. Miller, Of Counsel, Steptoe & Johnson PLLC, Louisville, KY
- Christopher S. Perry, President and CEO, Kentucky Association of Electric Cooperatives, Louisville, KY
4:00 – 4:45 p.m. Waters of the United States: What Now?
After years of litigation, conﬂicting guidance, and hundreds of thousands of public comments, the U.S. Environmental Protection Agency and the Army Corps of Engineers recently published a ﬁnal rule deﬁning “Waters of the United States” under the Clean Water Act. The rule purports to provide clarity and certainty for the regulated community in an area that has been fraught with confusion and uncertainty for years. But what exactly is clear or certain now about the scope of federal jurisdiction under the Clean Water Act? This session will provide a brief overview of the new rule’s major elements, followed by an in-depth discussion of the practical implications of the rule for those doing business in the energy arena. The focus of this presentation will be on what businesses can expect from this rule in their everyday operations.
- Timothy J. Hagerty, Frost Brown Todd LLC, Louisville, KY
- Rusty Ashcraft, Mgr., Environmental Affairs, Alliance Coal, LLC, Lexington, KY
- Phillip R. Elswick, P.E., President, Summit Engineering, Pikeville, KY
4:45 – 4:50 p.m. Break
4:50 – 5:50 p.m. Professional Ethics
Mr. Heywood will outline and discuss the role and duties of members of boards of directors and several related topics, including the respective roles of boards and CEOs; the sources of duties and obligations of board members; and issues related to board member standards of conduct, liability, and immunities. Attendees will come away from the presentation with a practical understanding of how to discharge their role, duties and obligations as board members, and how to be a more effective board member.
- Thomas A. Heywood, Bowles Rice LLP, Charleston, WV
6:00 – 8:00 p.m. Hosted Reception
Thursday, October 22 – Mining Track
8:00 – 8:50 a.m. Identify the Pattern: Challenges to MSHA Enforcement of Its POV Rule
This presentation will discuss the latest developments in enforcement of MSHA’s pattern of violations (POV) rule, focusing on pending litigation challenging both the validity of the rule and the application of the rule, including MSHA’s interpretations of what constitutes a pattern of violations and how the agency determines that citations constitute such a pattern.
- Melanie J. Kilpatrick, Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington, KY
8:50 – 9:40 a.m. Flagrant Violations: Is There a Light at the End of the Tunnel?
As part of the landmark MINER Act of 2006, Congress amended the Federal Mine Safety and Health Act of 1977 to include a “ﬂagrant” provision that authorizes a penalty of up to $242,000 for a single violation. Nearly a decade later, application of this provision remains mired in uncertainty. This presentation traces the history of the ﬂagrant provision, highlights the key points of clariﬁcation that may be on the horizon, and offers insights as to how operators can be proactive to avoid incurring this consequence.
- Daniel Z. Zaluski, Armstrong Coal Company, Inc., Madisonville, KY
9:40 – 10:00 a.m. Break
10:00 – 10:50 a.m. Financial Assurances, Suretyship and Bonding
State and federal laws governing resource extraction require that the permittee provide ﬁnancial assurances to the regulatory agencies to guarantee compliance with land and water reclamation/restoration. Financial assurances can be in several forms including corporate surety bonds, self-bonding and other forms of collateral. In light of market conditions numerous coal companies have ﬁled for Ch. 11 bankruptcy protection. Whether they can emerge without having addressed their environmental obligations is a big concern to state and federal agencies, the public and land owners. The surety companies play an important role at this intersection of environmental and bankruptcy law. This presentation will explain the concept of suretyship, reclamation obligations and current issues in the ﬁeld in light of recent Ch. 11 ﬁlings.
- William T. Gorton, III, Stites & Harbison, PLLC, Lexington, KY
10:50 – 11:40 a.m. Individual Liability for Coal Company Operations
The liability for coal mining operations extends far beyond the corporate or company level. This presentation addresses the potential liabilities ofﬁcers, directors, agents and owners of coal companies face for their companies’ operations under SMCRA, the Mine Safety and Health Act, and other applicable laws. It will also examine the impact of bankruptcy on those liabilities.
- Warren J. Hoffmann, Frost Brown Todd LLC, Lexington, KY
11:45 a.m. – 1:30 p.m. Lunch – On Your Own
EMLF Committee Luncheons (Membership, Programming,
Technology, Law School, Governance)
1:45 – 2:35 p.m. Coal Combustion Residuals
The process of disposing of and storing coal combustion residuals has been subject to increased scrutiny in recent years, stemming from recent incidents involving the release of coal combustion residuals into surrounding communities and waters. Brent Rosser, partner at Hunton & Williams LLP, will examine the potential legal impacts of these disposal and storage practices, as well as the pertinent regulatory programs, including EPA’s recently ﬁnalized coal combustion residuals rule.
- Brent A. Rosser, Hunton and Williams, LLP, Charlotte, NC
2:35 – 3:25 p.m. OSM’s New Stream Buffer Rule
In July, the Department of the Interior’s Ofﬁce of Surface Mining Enforcement and Reclamation issued its long-awaited revamped Stream Protection Rule after years of litigation and controversy. The Bush Administration’s 2008 changes to the stream buffer zone regulation were vacated by a federal judge in 2014 after environmental group litigation. The new proposed rule would make several changes to the existing 1983 regulation, including imposing for the ﬁrst time a federal deﬁnition for “material damage to the hydrologic balance outside the permit area,” comprehensive groundwater and surface water monitoring, and protection or restoration of perennial and intermittent streams. This presentation will provide an overview of the proposed rule and its potential implications for mining operators.
- Sherrie A. Armstrong, Crowell & Moring LLP, Washington, DC
3:25 – 4:15 p.m. Buyer’s Counsel — Current Issues in Coal Asset Acquisitions
While savvy industry investors can take advantage of current market conditions to acquire quality coal assets at a discount, the market and changing environmental regulations present new issues for buyer’s counsel conducting due diligence and negotiating transaction documents. Whether dealing with environmental regulations that can impact acquired coal operations; issues associated with long-term enforceability of contracts with insolvent entities; assignment and subleasing issues under coal leases; the complexity associated with acquiring assets out of bankruptcy; or structuring unique ﬁnancing arrangements, transaction lawyers must navigate many issues in order to identify and mitigate risk for their clients. This presentation will present and address some of these important current issues.
- Brady W. Dunnigan, Dinsmore & Shohl LLP, Lexington, KY
4:15 p.m. Adjourn
Thursday, October 22 – Oil & Gas Track
8:00 – 9:00 a.m. What Happens at the Intersection of Liquids Rich Gas, Pipeline Quality Specs and Royalties in an Oversaturated Market?
Over the past 12 months the prices for natural gas liquids (NGL) has plummeted due to an oversaturated market. The increased levels of NGLs and processing capacity in Appalachia have created a unique dynamic for producers. Where once the conversation was about royalty owners participating in NGL “uplift,” now the discussion has shifted to passing the NGL processing costs onto the royalty owners. This discussion will provide a high level overview of the need for processing liquids rich gas to meet pipeline spec, what has happened to the NGL market and ultimately why producers may end up holding the bag on liquid rich gas.
- Peter Swift, EQT Energy LLC, Houston, TX
9:00 – 10:15 a.m. Pooling in the Appalachian Shale Plays
This past year the state of West Virginia came very, very close to passing a pooling bill for horizontal drilling in all formations (including Marcellus). The bill was proposed in light of West Virginia’s historic statutory pooling for deeper formations, which is now being applied to the Utica, but not to the Marcellus. Other Appalachian states have pooling, or some variation of pooling. This presentation will examine the often-times competing concerns amongst stake-holders (the needs of working interest owners, surface owners, oil and gas owners, and others) and the ways in which applicable statutory pooling schemes attempt to provide for stake-holders’ varying interests. Panelists will discuss the speciﬁc state statutes that are already in place and whether to borrow concepts from states like Texas and Oklahoma in enacting or revising comprehensive modern pooling legislation. We will also look at how the Appalachian regulators are applying their existing statutory framework to horizontal drilling techniques, the implications for non-pooled multi-lease development by way of “allocation wells,” and the process for establishing units that do not conform with traditional well spacing.
- George A. Patterson, III, Bowles Rice LLP, Charleston, WV
- James R. Nicas, Steptoe & Johnson, PLLC, The Woodlands, TX
- William H. Smith, Steptoe & Johnson, PLLC, Bridgeport, WV
10:15 – 10:30 a.m. Break
10:30 – 11:40 a.m. Title Defects, Potential Curative Efforts, and Risk Assessment Issues
This presentation brings together a panel of title and land professionals to discuss a wide variety of title defect issues in the Appalachian Basin. The panel will discuss and provide analysis regarding speciﬁc real world title defects, including description problems, interpretation of reservations, unknown or missing owners, effect of tax sales, incomplete estate administration and other issues. The panel will also discuss addressing defects through curative efforts and the likelihood of successfully obtaining curative in a timely manner to meet management expectations. The panel will also focus on the assessment of risk associated with a defect following curative efforts whether successfully obtained or not and on recommendations to be made in regard to operations concerning defects.
- Moderator: Charles F.W. Saffer, Robinson & McElwee PLLC, Charleston, WV
- Joel E. Symonds, Vice President of Land, Mountaineer Keystone, LLC, Wexford, PA
- Michael L. Rush, Senior Title Manager, Rice Energy Inc., Canonsburg, PA
- Jacob M. Biehl, RPL, Senior Landman, Triad Hunter, LLC, Marietta, OH
11:45 a.m. – 1:30 p.m. Lunch – On Your Own
EMLF Committee Luncheons (Membership, Programming,
Technology, Law School, Governance)
1:45 – 2:35 p.m. Competing Surface Uses for Oil and Gas Development
With the robust development of pipeline infrastructure in the Appalachian basin, competition for surface rights related to oil and gas development and transportation is fierce. In some instances, operators will use "exclusive" rights to surface as a competitive edge. This presentation will cover competing rights to surface-use as between operators and the information necessary for evaluating this competition across relevant jurisdictions. The correlative rights at play necessarily invoke issues with recording and notice of rights, adequacy of descriptions, exclusivity under oil and gas leases, exclusivity for right-of-ways, blanket easements, implied surface rights versus express surface grants, and the accommodation doctrine.
- Travis L. Brannon, K&L Gates LLP, Pittsburgh, PA
2:35 – 3:25 p.m. Master Service Agreements
The presentation examines the industry’s use of uniform Master Service Agreements (MSAs) across the jurisdictions, and the problems and challenges this one-size-ﬁts-all approach presents, particularly with respect to indemniﬁcation provisions. The session will address commonly litigated indemnity language and the interplay between indemnity and insurance, and compare and contrast how courts, in both those states newer to the oil and gas industry such as Pennsylvania and Ohio, as well as those more familiar with it such as Oklahoma and Texas, have addressed those issues. The purpose of the paper is to enable counsel to better advise clients on their indemnity rights and obligations in the states they do business, so they can avoid common pitfalls and more importantly, know what to expect in each jurisdiction.
- Daniel R. Michelmore, Jackson Kelly PLLC, Pittsburgh, PA
3:25 – 4:15 p.m. What You Should Know About Induced Seismicity
This session presents a discussion on induced seismicity and the legal impacts on upstream oil and gas and disposal operations. The public, researchers, state regulators and our industry have all become focused on induced seismic events as shale plays have increased throughout the United States. The result has led to delays in the permitting of disposal wells and heightened monitoring of oil and gas drilling operations. The panel discussion provides a broad presentation on what EMLF members should know about induced seismicity, including the basics on what is induced seismicity, how it is regulated at the state level and how those regulations are impacting the oil and gas industry. The presentation includes a review and discussion of recent regulatory efforts and litigation.
- Michael J. Settineri, Vorys Sater Seymour and Pease LLP, Columbus, OH
- J. Daniel Arthur, President, Chief Engineer, ALL Consulting LLC, Tulsa, OK
4:15 p.m. Adjourn