On-Shift Report

Introduction of House Bill to Amend Clean Water Act to Remove EPA Veto Authority

According to a report from Margaret Bauman in the Seward Phoenix LOG, Rep. Don Young, R-Alaska, recently introduced a bill to remove the U.S. Environmental Protection Agency’s (“EPA”) ability to veto a U.S. Army Corps of Engineers (“Corps”) decision regarding permits under the Clean Water Act. 

via eem.jacksonkelly.com

MSHA STRESSES ILLEGALITY OF ADVANCE NOTICE OF INSPECTION ACTIVITY

On August 26, 2010, the Mine Safety and Health Administration (“MSHA”) reminded the mining industry that the Mine Act prohibits giving advance notice of inspections conducted by MSHA inspectors. MSHA issued Program Information Bulletin No. P10-15 (“PIB”) which emphasizes that Section 103(a) of the Mine Act prohibits “any person” from giving advance notice of inspections. The PIB also warns the mining community of the potential consequences for anyone who violates the advance notice prohibition. Among the sanctions available to MSHA are:a civil action in federal court to obtain an injunction prohibiting future violations;a criminal action in federal court with fines of up to $1000 or imprisonment or both;a civil monetary penalty against the mine operator; andsimilar sanctions against agents of mine operators who knowingly permit or order the advance notice of inspection activity.

via safety-health.jacksonkelly.com

MSHA ISSUES FOUR PROGRAM INFORMATION BULLETINS PERTAINING TO VENTILATION IN UNDERGROUND COAL MINES

On Monday, August 16, 2010, the Mine Safety and Health Administration (“MSHA”) issued four Program Information Bulletins (“PIBs") pertaining to ventilation issues in underground coal mines. In the press release, which accompanied the release of the PIBs, MSHA stated that the PIBs were issued based upon the testimony heard at field hearings conducted by the House Education and Labor Committee in May of this year. MSHA emphasized that the purpose of the PIBs was to remind mine operators, miners’ representatives, and MSHA enforcement personnel of the requirements of these standards and to instruct MSHA enforcement personnel to increase enforcement efforts relating to alleged violations of ventilation standards.

via safety-health.jacksonkelly.com

THE BYRD-ROCKEFELLER MINE SAFETY REPORTING REQUIREMENTS

The financial reform bill (the "Dodd-Frank Wall Street Reform and Consumer Protection Act," Pub L. 111-203) that the President signed into law on July 21, 2010, contains new reporting requirements for publicly traded mining companies.

via safety-health.jacksonkelly.com

Recent Court Decisions of Interest

Summary Judgment Granted in Subsidence Case 

The Circuit Court of Mingo County recently granted summary judgment in favor of a coal company conducting underground mining operations in Mingo County.  Plaintiffs alleged extensive damage to their home and loss of well water allegedly caused by the underground mining operations of the coal company.  In granting the summary judgment, the Court found that the defendant's mining operations did not cause the damage to plaintiffs’ property but rather, it was caused by natural subsidence.  Plaintiffs were represented by Kevin W. Thompson.  The coal company was represented by Dan Stickler and Matt Nelson. 

Defense Verdict for Operator in Blasting Case 

A jury in Logan County, West Virginia recently found for a coal company operating a surface mine and against plaintiff homeowners who alleged that surface mining operations, in particular blasting, caused extensive structural damage to their residence.  Plaintiffs also claimed damages and annoyance as a result of fly rock from the adjacent surface mine striking their home.  The jury found that the damage to plaintiffs' homes was not a result of mining activity but was due to unrelated subsidence and improper construction of the home.  Plaintiffs were represented by H. Truman Chafin , Letitia Chafin and Kevin W. Thompson.   The coal company was represented by Dan Stickler and Jill McIntyre.

Energy and Environment Monitor: Proposed Boiler MACT – Energy Assessment Requirements

Proposed Boiler MACT – Energy Assessment Requirements

On June 4, 2010 National Emission Standards for Hazardous Air Pollutants for Major Sources; Industrial, Commercial, and Institutional Boilers and Process Heaters – Proposed Rule [Major Source Boiler/Process Heater MACT - Vol. 75, No. 107 page 32006) and National Emission Standards for Area Sources: Industrial, Commercial and Institutional Boilers – Proposed Rule [Area Source Boiler MACT - Vol. 75, No. 107 page 31896] were published in the Federal Register.   One feature of both proposed rules is the requirement that facilities conduct an energy assessment to identify cost-effective energy conservation measures.

via eem.jacksonkelly.com

On June 4, 2010 National Emission Standards for Hazardous Air Pollutants for Major Sources; Industrial, Commercial, and Institutional Boilers and Process Heaters – Proposed Rule [Major Source Boiler/Process Heater MACT - Vol. 75, No. 107 page 32006) and National Emission Standards for Area Sources: Industrial, Commercial and Institutional Boilers – Proposed Rule [Area Source Boiler MACT - Vol. 75, No. 107 page 31896] were published in the Federal Register.   One feature of both proposed rules is the requirement that facilities conduct an energy assessment to identify cost-effective energy conservation measures.

Public Nuisance: Will the Court System’s Attempt at a “Climate Change” Policy Get the Supreme Court’s Stamp of Approval?

It seems that the future of public nuisance cases may soon be in the hands of the United States Supreme Court due to the “circuit split” that has resulted from a recent decision, or non-decision, by the 5^th Circuit Court of Appeals. The 5^th Circuit follows decisions in two other circuits reaching opposite results, giving us a trio of public nuisance cases that could possibly establish a “cap and trade” policy through tort litigation. 

via eem.jacksonkelly.com

Preserving Evidence

During litigation or a government investigation, a company’s spoliation "spō-lē-`ā-shən" (mishandling, alteration, damage, or destruction) of evidence can lead to sanctions. For trials, this may mean an adverse inference instruction, wherein the court instructs jurors that they may infer that the altered or missing evidence – if it had been available – would have been unfavorable to the offending party’s case. 

Energy and Environment Monitor: U.S. EPA Proposes to Amend the Mandatory Reporting of Greenhouse Gases by Adding Source Categories

The Mandatory Reporting of Greenhouse Gases Rule currently requires suppliers of fossil fuels or industrial greenhouse gases, manufacturers of vehicles and engines, and facilities that emit 25,000 metric tons or more per year of greenhouse gas ("GHG") emissions to submit annual reports to U.S. Environmental Protection Agency ("USEPA").  On March 22, 2010, ("USEPA") signed several proposed rules to amend the Mandatory Reporting of Greenhouse Gases Rule by adding source categories.  These include:

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The above article was posted on our Energy & Environment Blog.

EPA Announces Expected Permit Veto

In its long awaited decision, US EPA has announced that it will veto the Section 404 Clean Water Act dredge and fill permit issued to Mingo-Logan’s Spruce Fork Mine.  The Army Corps of Engineers finally issued the Section 404 permit to the Logan County mine in 2007 following a decade of permitting, evaluation and litigation.  The Spruce Fork mine is the only surface coal mine in the Eastern United States to have performed a complete environmental impact analysis under NEPA. EPA announced its decision in a press release shortly after noon today.  The press release may be viewed here.