December 19, 2007

December 19, 2007

Winter Workshops on Energy Law

Hotel Cutoff December 20th
December 20 is the last day to register at a reduced rate in the EMLF room block at the Sundial Beach and Golf Resort for the January 24-26 Winter Workshops on Sanibel Island, Florida. To make hotel reservations, call the Sundial Resort at 866-565-5093 and ask for the EMLF rate.

Early Bird Registration Ends January 4, 2008
Take advantage of discounted registration fees through January 4 for the Winter Workshops on Energy Law, “Balancing Energy Security, Economic Growth, and Environmental Concerns,” January 24-26. You can register online or download the registration form and fax to the EMLF at 859-226-0485 or mail to 340 South Broadway, Suite 101, Lexington, KY 40508.

Class Action Suit Filed
in Coal Combustion Waste Case

Queen v. Constellation Power Source Generation Inc. is a first-time class action suit brought against a utility for contaminating groundwater with hazardous substances through the disposal of coal combustion waste (CCW).

More than 5,000 former and current residents of Anne Arundel County, MD, filed a Nov. 28 class action (No. 24C07009389OT, Md. Cir. Baltimore City) claiming that Constellation Power committed “reckless negligence” in disposing of coal waste without adequate controls. The suit claims the disposal led to the contamination of at least 34 groundwater wells with toxins including arsenic, lead and cadmium.

EMLF Law Student Scholarships
Looking for a year-end tax deduction? The EMLF is a 501(c)(3) nonprofit educational organization, making all contributions fully deductible by the donor. Consider sponsoring a minimum $1000 law student scholarship or contributing in any amount to the general scholarship fund. Two generous scholarships for the 2008-09 academic year are being sponsored by Mary Sue Schulberg and by Jan and Chester Keeton.

29th EMLF Annual Institute
Lake Buena Vista, Florida – May 18-20, 2008
It’s not too early to make room reservations at Disney’s BoardWalk Resort via the EMLF website.

Katapult MarketingDecember 19, 2007
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December 10, 2007


Winter Workshops on Energy Law –
January 24-26, 2008
Don’t miss this year’s Winter Workshops, which focus on balancing energy security and economic growth with global demand for GHG emissions reductions.

The role of technology to lessen foreign imports, the array of renewable energy options and financing mechanisms, the next generation of coal-fired power plants, the transmission infrastructure, demand-side energy management — all of these plus an ethics session will be on the program. Approximately 12.9 -15.4 hours of CLE.

Complete brochure and program schedule available at the EMLF website.

Sundial Beach and Tennis Resort –
Hotel Cutoff December 20, 2007

The EMLF room block for the Winter Workshops will be released on December 20. Be sure to call the Sundial at 866-565-5093 and ask for the EMLF room block rate.

The Sundial Beach Resort is an all condo, family-oriented beachfront hotel on the Gulf of Mexico, located on Sanibel Island in southwest Florida. Daytime children’s programs are available. Sanibel Island is reached via Southwest Florida International Airport (RSW) in Ft. Myers, about a 30-minute drive to the Sundial.

Winter Workshops Registration
You can register online with the early bird discount available until January 4. You may also download the registration form and fax to the EMLF at 859.226.0485 or mail to the EMLF, 340 South Broadway, Suite 101, Lexington, KY 40508.

Sanibel Island Shelling
Sanibel and Captiva islands rank tops in the world for their shelling. The east-west torque of Sanibel’s south end (where the Sundial is located) acts like a shovel scooping up all the sea shells that the Gulf imports from Caribbean and other southern seas.

Conch, Junonia, Lightning Whelk, Cockle, Scallops, Murex, Tulip, Olive, Coquina are among the species you may expect to find. The temperature today is 77 degrees with clear skies.

Katapult MarketingDecember 10, 2007
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October 29, 2007

Record attendance at the Kentucky Mineral Law Conference
Last week’s Mineral Law Conference attracted 246 lawyers and landmen, making it the largest attendance ever at this conference held annually in Lexington for the past 32 years.

Call for Annual Institute topics and speakers
It’s time to start planning the program for the 29th Annual Institute, scheduled for May 18-20, 2008 at Disney’s BoardWalk Resort in Lake Buena Vista, Florida. Members are invited to submit topic and speaker suggestions to the EMLF by Friday, November 2. You can reply to this email or fax your ideas to 859.226.0485.

Keep in mind when choosing a topic or suggesting a speaker that in addition to their presentation at the Annual Institute, speakers are required to write a law-review caliber chapter for publication in the Energy & Mineral Law Institute Annual Proceedings.

The 2008 Program Chair is Timothy W. Gresham, Penn Stuart & Eskridge, Washington, DC; Coal Chair, John T. Boyd II, John T. Boyd Co., Canonsburg, PA; and Oil and Gas Chair, Timothy M. Miller, Robinson & McElwee, Charleston, WV.

Energy Careers programs wrap-up this week
at Washington & Lee and American University

EMLF sponsored a series of presentations at six EMLF member law schools this fall, aimed at attracting young lawyers to the practice of energy and mineral law. Volunteers talked with students about their own careers and opened up the dialogue for a discussion on the variety of legal skills that come into play for the energy and mineral lawyer.

On October 22, Monika Hussell, Dinsmore & Shohl; Bob McLusky, Jackson Kelly; and Sharon Pigeon of the Office of Attorney General for Virginia talked to Washington & Lee students in Lexington, VA. On October 23, Professor Barlow Burke at American University in Washington, DC, headed up the program featuring Kirsten Nathanson, Crowell & Moring; Greg Ossi, Venable; and Margo Lopez at Ogletree, Deakins, Nash, Smoak & Stewart.

Other law school programs during October were at Appalachian Law School in Grundy, VA, with 165 students attending presentations by Jill Morgan Harris, Alpha Natural Resources; Patrick R. Baker, Penn Stuart & Elkridge; and Natalie R. Jefferis, Equitable Production Company. West Virginia University had a number of EMLF volunteers speaking to students: Bob Beatty and Carol Marunich, Dinsmore & Shohl; Erin Magee, Jackson Kelly; David Morrison, Steptoe & Johnson; and Mary Sue Schulberg, NiSource Corporate Services Co.

Attendance varied among schools, but we estimate over 200 students had the opportunity to learn from the EMLF members in this series of programs. Thanks to everyone for volunteering their time.

Katapult MarketingOctober 29, 2007
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September 25, 2007

Breathitt to Speak at October 18-19 Mineral Law Conference
Linda Key Breathitt, senior energy and regulatory advisor at the law firm of Thelen Reid Brown Raysman & Steiner LLP in Washington, DC, will be the  October 18 luncheon speaker at the Mineral Law Conference in Lexington, KY.

Breathitt, former Commissioner at the Federal Energy Regulatory Commission and former Commissioner and Chairman of the Kentucky Public Service Commission, will speak on Congressional activity related to national energy policy.

32nd Mineral Law Conference
Still time to register for the Mineral Law Conference, October 18-19 at the Marriott Griffin Gate Resort in Lexington, KY.  Complete program brochure, speaker biographies and current registration list available at the EMLF website. The conference resort room block, however, is sold out; alternatives may be found by going to,, or Where possible, use the Marriott’s address (1800 Newtown Pike) as a reference to find a hotel close by. Or go to the Lexington Convention and Visitors Bureau; there is a map that shows the locations of the hotels. Their website is

Energy Careers Programs at Member Law Schools this Week
Programs at the University of Pittsburgh and Duquesne University kick off a series of fall programs aimed at attracting law students to the field of energy law Students are invited to attend lunch hour programs where free pizza is served while EMLF members talk about their personal experience and explain the variety of practice areas used by energy lawyers.

Speaking at Pitt on September 26 are Joe Reinhart, Babst, Calland, Clements & Zomnir; Natalie Jefferis and Joel Symonds, Equitable Production Co.; and EMLF President David Ries, Thorp Reed & Armstrong.  Speaking at Duquesne are Kevin Douglass, Babst, Calland, Clements & Zomnir; Blair Gardner and Erin Stankewicz, Jackson Kelly; David Laurent, Buchanan Ingersoll & Rooney; and Craig Mayer, Pennsylvania General Energy Co.  Executive Director Sharon Daniels will provide details on law student scholarships and offer complimentary student memberships for attendees at these programs. Many thanks to all the EMLF volunteers who make these law school programs possible.

October Energy Careers programs and speakers:
October 3 – Appalachian Law School
Jill Harrison, Alpha Natural Resources, Abingdon, VA
Natalie Jefferis, Equitable Production Co., Charleston, WV
Patrick Baker, Penn Stuart & Eskridge, Abingdon, VA

October 8 – West Virginia University College of Law
David Morrison, Steptoe & Johnson, Clarksburg, WV
Mary Sue Schulberg, NiSource Corporate Services, Charleston, WV
Tom Rubenstein, Dinsmore & Shohl, Morgantown, WV

October 22 – Washington & Lee
Bob McLusky, Jackson Kelly, Charleston, WV
Greg Ossi, Venable, Washington, DC
Sharon Pigeon, Assistant Attorney General, Commonwealth of Virginia, Big Stone Gap, VA

Law Student Scholarship Gift
Jan and Chester Keeton, Lexington, KY, have contributed a $5000 gift to the EMLF, to be used as a law student scholarship for the 2008-09 academic year.  

This scholarship from The Keeton Group is intended for a landman who has chosen  to attend law school and ultimately practice mineral law.  The Foundation annually accepts donations by EMLF members who wish to provide a one-time scholarship  to a student attending an EMLF member law school.  Scholarship applications will be available online in early 2008 for the 2008-09 academic year.

Dinsmore & Shohl Ranked Tops in Nation for Mining Law
Dinsmore & Shohl LLP has received the highest ranking in the nation in Mining Law from Best Lawyers®, a respected peer-review publication. Seven Dinsmore & Shohl attorneys received individual Best Lawyers’ recognition in Mining Law – the most of any law firm in the United States.

The individual Dinsmore & Shohl attorneys selected as Best Lawyers in Mining Law are Chauncey S.R. Curtz, Anna M. Dailey, W. Henry Jernigan Jr., Christopher B. Power, Thomas C. Reed, John R. Rhorer and Forrest H. Roles. In total, 75 individual Dinsmore & Shohl attorneys were selected as Best Lawyers for 2008.  Complete press release posted on What’s New.

Katapult MarketingSeptember 25, 2007
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August 15, 2007

31st Mineral Law Conference – October 18-19, 2007
The brochure for the Mineral Law Conference at the Marriott Griffin Gate Resort in Lexington, KY, is now available for downloading on the EMLF website.

The program provides approximately 12.9 CLE credit hours in 50-minute states and 10.75 hours in 60-minute states, including one hour of ethics. Co-sited with the Kentucky Coal Association Annual Meeting, with a joint reception for attendees on October 18.  Hotel cutoff is September 26 or sell-out.

General sessions on Thursday cover recent Supreme Court cases, the “reasonable accommodation” doctrine, conflicts in mineral development, restrictive covenants, carbon capture and sequestration, permitting and building a transmission line, and employee representatives in regulatory investigations (ethics).  On Friday morning, oil and gas sessions cover recent court decisions, pipeline appurtenances and restrictions, urban drilling and local regulation of oil and gas operations, mineral interest conveyances and the Duhig rule, and regulation of fraudulent oil and gas securities offers.  The coal track includes an MSHA update including new penalty regulations, MSHA enforcement of Pattern of Violations citations, Black Lung eligibility and successor liability, coal markets in the Appalachian and Illinois Basins, and investing in energy projects.

Energy Careers Programs at EMLF Member Law Schools
Volunteers are needed for the EMLF Energy Careers programs at law schools this fall, providing an informal opportunity for students to talk to EMLF members about a potential career in energy law.  Programs are planned at the following schools:   Appalachian Law School, Grundy, VA (October 3); Duquesne University (September 27); University of Pittsburgh (September 26); West Virginia University (October 8); and dates to be determined at American University, Washington, DC, and Washington & Lee University in Lexington, VA.  The programs help students understand the wide variety of practice areas that are used by energy and mineral lawyers, and encourage students to consider the opportunities.  Three (3) speakers per program are needed to talk about their own careers and field questions from students.  In addition to free pizza, students are given complimentary EMLF student memberships and encouraged to apply for EMLF scholarships.  To volunteer, reply to this email or contact Sharon Daniels.

Mark your calendars
January 24-26, 2008
Winter Workshops on Energy Law
Sundial Beach Resort, Sanibel Island, FL

May 18-20, 2008
29th Annual Institute
Disney’s BoardWalk Resort, Lake Buena Vista, FL

Katapult MarketingAugust 15, 2007
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June 21, 2007

Kentucky Mineral Law Conference – October 18-19, 2007
The planning meeting for the annual Kentucky Mineral Law Conference will be Wednesday, July 11 in Lexington, KY. The conference is scheduled for October 18-19 at the Marriott Griffin Gate Resort in Lexington, co-sited with the annual meeting of the Kentucky Coal Association. Steve Allen, Stites & Harbison, will serve as program chairman.

We are soliciting proposals and speakers on a wide range of topics, including but not limited to coal, oil and gas, electric power, real property, business transactions, mine safety, environmental regulations, ethics and renewable energy. Please reply to this email with a brief description of your topic – and don’t hesitate to volunteer to speak.

All topic proposals should be submitted by Tuesday, July 10, so that the planning meeting materials can be prepared and distributed.

If you wish to attend the July 11 planning luncheon or participate via conference call, please reply to this email.  We’re looking forward to the 32nd Kentucky Mineral Law Conference this fall, and thank you in advance for your help in planning the program.

Katapult MarketingJune 21, 2007
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May 10, 2007

Breaking News From Mine Safety and Health News
Reprinted with permission from
Ellen Smith, Owner and Managing Editor,
Mine Safety and Health News

ICG Cleared In Sago Explosion, MSHA Reports
No wrongdoing by mine operator International Coal Group, Inc., contributed to the deaths of 12 miners in an explosion at Sago Mine in Buckhannon County, W.Va., mine 16 months ago, MSHA investigators have concluded. They reported yesterday that lightning most likely caused the January 2, 2006, blast, which originated in a sealed-off area.

But new safety standards may be needed to protect miners from future explosions due to lightning, according to one 104-page appendix to the MSHA report, prepared by Sandia National Laboratories, which described a novel ignition scenario as probably responsible for the explosion.

An electric cable attached to a pump that was left behind in the sealed area most likely responded like an antenna to the electromagnetic energy of a nearby lightning strike, through a phenomenon called “indirect coupling,” and produced an electric arc that triggered the explosion, the Sandia specialists reported. Previously, explosions due to lightning strikes have been attributed to direct conductors, such as a gas wells, transmitting electrical energy into sealed areas.

With further research, “. . . it is reasonable to expect that mitigation techniques and safety standards could be developed to secure coal mining systems from future lightning threats,” the Sandia scientists, Matthew B. Higgins and Marvin E. Morris, wrote.

The Sandia scientists acknowledged that two recorded cloud-to ground lightning strikes, the focus of much previous attention, were in fact too far from the sealed area for the vertical strokes to cause the assumed arcing on the pump cable. Their conclusion rested on “credible hypothetical scenarios”: either a horizontal branch of a lightning stroke, or an unrecorded lightning stroke closer to the sealed area, such as a ground-to-cloud strike not normally recorded by lightning detection networks. They virtually ruled out direct transmission of electricity from a lightning strike into the interior of the Sago mine through a combination of power lines and mine equipment, a scenario previously suggested.

MSHA admitted that “a roof fall cannot be definitively excluded as an ignition source” but called it “highly unlikely.”

MSHA investigators made three recommendation in a “root cause analysis” of the Sago accident: “Seals should be designed and installed to prevent an explosion from propagating to the opposite side. . . . The atmosphere in existing sealed areas should be monitored and maintained inert when the seals are not capable of resisting the forces of an explosion . . . Insulated cables and conductors should be removed from the area to be sealed prior to seal completion.”

“We . . . are aggressively pursuing regulatory action to require mine operators to take additional steps to protect miners from the dangers of explosions in sealed areas,” MSHA chief Richard E. Stickler said in a news release.

Among other findings, MSHA investigators implicitly defended allowing the use of Omega blocks to construct seals, based on NIOSH research conducted at the Lake Lynn experimental mine for the purposes of the investigation. Use of the light-weight composition blocks in place of conventional concrete block to construct seals had been widely criticized in the wake of both the Sago explosion and the Darby mine explosion four months later.

“The Omega block seal that was constructed in the same manner as the one which successfully passed explosion testing in 2001 [when the agency adopted a requirements of 20 psi for “alternative” seals] can successfully withstand static explosion pressures of at least 50 psi [the current requirement, administratively increased after Sago and Darby],” the investigators reported.

The investigators also reported that seals constructed similarly to those at Sago would withstand a pressure of 21 psi. “Although the . . . seals were not built in accordance with the approved ventilation plan requirements, the forces generated by the explosion would have completely destroyed the seals even if they had been in compliance with the plan,” they wrote.

MSHA said explosion forces hit the Sago seals with over 93 psi. “The 20-psi standard for underground seals that MSHA put in place in 1992 was inadequate to protect miners,” said Stickler. “We already have increased the strength requirements for new alternative seals to 50 psi. . . .”

Federal investigators also drew the conclusion that a more rapid emergency response to the Sago explosion would have been futile.

“. . . [H]ad agency officials and the mine rescue teams arrived earlier, the teams would not have been permitted underground any earlier than actually occurred due to the high levels of toxic gases and the possibility of another explosion,” they wrote.  “Even if the mine rescue teams had been on site and entered the mine immediately . . . . they would have been withdrawn when they encountered the high carbon monoxide levels.”

The federal agency has been criticized for allowing reliance on contract mine rescue teams composed of individuals not employed at the mine.  An initially confused response to the Sago explosion also received much criticism.

MSHA issued 149 citations and orders to ICG subsidiary Wolf Run Mining Co. during the investigation, but none of the alleged violations contributed to the causes, effects or severity of the accident, according to investigators.

An internal review into MSHA’s own activities at the Sago mine prior to the explosion remains pending.

Katapult MarketingMay 10, 2007
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April 4, 2007

U.S. Supreme Court Decisions – April 2
In an unanimous decision, the Supreme Court vacated and remanded the Fourth Circuit Court of Appeals ruling that Duke Energy Corp. did not violate clean air laws.  See Environmental Defense v. Duke Energy Corp.

In another case,  Massachussetts v. EPA, the Supreme Court held that EPA has authority to regulate greenhouse gas emissions from cars under the Clean Air Act. 

Katapult MarketingApril 4, 2007
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April 3, 2007

27th Annual Institute
May 13-15, 2007
Charleston, South Carolina

Charleston Dine-Around May 14
There are lots of wonderful restaurants in Charleston, so plan to join a group on Monday evening for the traditional “Dine-Around” dinner with others attending the Annual Institute.

This is a nice opportunity to meet new people and get better acquainted with some you already know. EMLF makes the reservations in advance and everyone pays for his or her own meal, so all you need to do is select the restaurant or group that appeals to you.

You can sign up at the Welcome Reception on Sunday night, May 13, or at the EMLF registration desk on Monday.

Accommodations in Charleston
We’re sorry that the Annual Institute host hotel has completely sold out, but Charleston’s Historic Area has lots of inns and quaint bed and breakfasts nearby the meeting site at 181 Church Street. Go to or for more ideas on places to stay.

John L. McClaugherty Award Nominations Open
Nominations are now being accepted for the 2007 John L. McClaugherty Award to be presented at the 27th Annual Institute. This award honors outstanding service to the EMLF and to the energy and mineral industry.

Nominees should exemplify high standards for commitment and accomplishment both to the EMLF and to the natural resources industry. Consistent reliability in promoting the goals of the EMLF and active participation in the EMLF will be important criteria for this award.

Nominations for the award should be sent to Sharon Daniels, EMLF Executive Director, at the address below or via email to Deadline for nominations is April 25, 2007.

April 11 – Early Bird Registration Deadline
Be sure to take advantage of discounted registration fees and register at the lower rate through April 11. Online registration is available at

Bring a Picture Book to Charleston
Do you have a favorite children’s book you’d like to donate to the South Carolina Center for Children’s Books and Literacy? The Center is at the University of South Carolina, and promotes reading and literacy in the State’s youngest citizens.

As a good will gesture to our host State, EMLF will be collecting children’s books at the EMLF registration desk and donating them at the close of the Annual Institute.  No time to buy a book?  You can bring a donation or check payable to EMLF, and we’ll buy it for you and put your name in it.  Book plates will be made available for the donor’s name, commemorating the  gift and the Annual Institute in Charleston.

Katapult MarketingApril 3, 2007
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March 21, 2007

Trial Court Sets Aside Jury Verdict in Mass Flooding Litigation
On March 15, 2007, Judge John A. Hutchison, Judge of the Circuit Court of Raleigh County, West Virginia, set aside the jury verdict in favor of plaintiffs residing in the Mullens subwatershed, which was rendered against two land holding companies, Western Pocahontas Properties, LLP and Western Pocahontas Corporation.

The jury trial, which took place in March, April and May of 2006, was the first trial related to a number of cases which were consolidated before the West Virginia Mass Litigation Panel, arising from flooding occurring in July, 2001. Judge Hutchison’s ruling sets aside a jury verdict which was considered a dangerous precedent for all land holding companies, and all natural resource extraction companies operating in West Virginia and elsewhere in the Appalachian Region.

See full text of Judge Hutchison’s decision on What’s New at the EMLF website at, plus commentary on the Mass Flooding Litigation by Tim Miller, Robinson & McElwee, Charleston, WV. Tim’s chapter about the litigation that followed the severe flooding in southern West Virginia in July 2001 appears in volume 26 of the Energy & Mineral Law Institute and is also available free to EMLF Members in the Members Only section of the EMLF website or for purchase by nonmembers from the White Papers online.

28th Annual Institute – May 13-15, 2007
Doubletree Guest Suites Hotel, Charleston, South Carolina

Flatwoods, WV Program Draws 321 Attendees
The March 8 program in Flatwoods, WV on the oil and gas lease and descent and distribution drew a record number of landmen and attorneys from throughout the Appalachian Basin and the eastern U.S.

Flatwoods — described as being equally inconvenient to everyone — and a stellar group of speakers headed up by program chairman Sean Cassidy provided a great educational experience along with the chance to get together with friends in the industry.

EMLF Law Student Scholarships
Deadline for student applications is April 13, 2007 for the 2007-08 academic year. Applications can be downloaded from the EMLF website.

AEP Announces Carbon Capture and Sequestration Project
American Electric Power has announced it will install carbon capture on two coal-fired power plants, the first commercial use of technologies to significantly reduce carbon dioxide emissions from existing plants.

The first project is expected to complete its product validation phase in 2008 and begin commercial operation in 2011, at AEP’s 1300-megawatt Mountaineer Plant in New Haven, W.Va., using Alstom’s Chilled Ammonia Process. The captured CO2 will be designated for geological storage in deep saline aquifers at the site.

2008 Winter Workshops on Energy Law
EMLF has signed a contract with the Sundial Beach & Golf Resort on Sanibel Island, Florida, for the January 24-26, 2008 Winter Workshops on Energy Law.

Katapult MarketingMarch 21, 2007
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