]n tbe QCourt of of West )3irginia · 2017-05-24 · ]n tbe ~uprenle . QCourt of ~ppea(g . of West )3irginia . No. 16-0827 (Marshall County Circuit Court Civil Action No. 09-CAP-1

~ ]n tbe ~uprenle QCourt of ~ppea(g

of West )3irginia

No 16-0827 (Marshall County Circuit Court Civil Action No 09-CAP-1 K)

TEXAS EASTERN TRANSMISSION LP

Petitioner

v

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION DIVISION OF MINING AND RECLAMATION and THE MARSHALL COUNTY COAL COMPANY flka

McELROY COAL COMPANY

Respondents

BRIEF FOR PETITIONER

Kent George (WV ID 4842) W Bradley Sorrells (WV ID 4991) Robinson amp McElwee PLLC Post Office Box 1791 Charleston WV 25301 (304) 344-5800 wbsramlawcom

Craig P Wilson (admitted pro hac vice) Anthony R Holtzman (admitted pro hac vice) KampL Gates LLP 17 North Second Street 18th Floor Harrisburg P A 17101 (717) 231-4509 craig wilsonklgatescom

Counsel for Texas Eastern Transmission LP

TABLE OF CONTENTS

ASSIGNMENT OF ERROR 1

STATEMENT OF THE CASE 1

Relevant Factual and Evidentiary Background 2

Procedural History 4

SUMMARY OF TI-IE ARGUMENT 7

STATEMENT REGARDING ORAL ARGUMENT AND DECISION 9

ARGUMENT 9

I AN APPLICANT FOR A LONGW ALL MINE PERMIT IN WEST VIRGINIA IS OBLIGA TED BY REGULATION TO DEMONSTRATE IN ITS APPLICATION HOW HARM TO NATURAL GAS PIPELINES AND NATURAL GAS PIPELINE SERVICE WILL BE MINIMIZED OR REDUCED 10

A Marshall Coal Was Required But Failed to Demonstrate in Its Application for Revision 33 that It Will Comply with the WV Utility Protection Standard 11

1 Section 332a required Marshall Coal to demonstrate in its application that it will coniply with the WV Utility Protection Standard 12

2 Marshall Coal failed to demonstrate in its application that it will comply with the WV Utility Protection Standard 14

B Marshall Coal Was Required But Failed To Specify in Its Subsidence Control Plan How It Will Protect the Pipelines from Subsidence 19

1 Marshall Coal failed to comply with Sections 312al and 3 12d2 19

2 Section 312d2 is separate from Section 312a6 22

C The Marshall County Courts Conclusion Is Inconsistent with Key Objectives of the WV SCMRA and Its Implementing Regulations 26

CONCLUSION 28

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Hodel v Virginia Surface Mining amp Reclamation Ass n Inc 452 US 264 (1981) 13

State Cases

Anteo Inc v Dodge Fuel Corp 550 SE2d 622 (WVa 2001) 17

Appalachian Power Co v State Tax Dept ofWest Virginia 466 SE2d 424 (WVa 1995) 10

Curnutte v Callaghan 425 SE2d 170 (WVa 1992) 12 24

PNGI Charles Town Gaming LLC v Reynoldmiddot 727 SE2d 799 (WVa 2011) 25

Rose v Oneida Coal Company Inc 466 SE2d 794 (WVa 1995) 13 18

Vance v West Virginia Bureau ofEmployment ProgramElkins Job Service 619 SE2d 133 (WVa 2005) 25

Federal Statutes

Surface Mining Control and Reclamation Act 30 USC sect 1201 et seq passim

30 USC sect 1255(a) 13

30 USC sect 1255(b) 13

30 USC sect1260(b)(6)(C) 16

30 USC sect 1266 18

30 USC sect 1270(f) 18

State Statutes

WV Surface Coal Mining and Reclamation Act W Va Code 22-3-1 et seq passim

ii

W Va Code sect 22-3-2(b)(I) 26

W Va Code sect 22-3-2(b)(2) 26


W Va Code sect 22-3-14 18

W Va Code sect 22-3-25(f) 18

Federal Regulations

30 CFR sect 73011 (a) 13

30 CFR sect 816181 16

30 CFR sect 8171 13

30 CFR sect 817121 16

30CFR sect 817126 17

30 CFR sect 817180 passim

30 CFR sect 817181(b) 15

44middotFed Reg at 15070 (March 13 1979) 14

44 Fed Reg at 15262 (March 13 1979) 16

44 Fed Reg at 15274 (March 13 1979) 17

44 Fed Reg at 15276 (March 13 1979) 17

44 Fed Reg at 15278 (March 13 1979) 15 16

44 Fed Reg at 15279 (March 13 1979) 15

48 Fed Reg at 20398 (May 5 1983) 15

State Regulations

West Virginia Coal Surface Mining Rule WV CSR sect 38-2-1 et seq 12

WV CSR sect 38-2-312a 2325

WV CSR sect 38-2-312al passim

WV CSR sect 38-2-211920

WV CSR sect 38-2-312a2 20

111

WV CSR sect 38-2-312a6 passim

WV CSR sect 38-2-312d passim

WV CSR sect 38-2-312d2 passim

WV CSR sect 38-2-332a passim

WV CSR sect 38-2-332d 11

WV CSR sect 38-2-332dl 11

WV CSR sect 38-2-1417 passin

WV CSR sect 38-2-162a 23

WV CSR sect 38-2-162c 20 23 26

WV CSR sect 38-2-162cl 24

WV CSR sect 38-2-162c2 24


Rules

West Virginia Rule of Appellate Procedure 18(a) 9

West Virginia Rule of Appellate Procedure 20 9

IV

ASSIGNMENT OF ERROR

Whether the Circuit Court of Marshall County erred in affirming the West Virginia

Surface Mine Boards determination that under West Virginia law a mine permit application

need not demonstrate how pipelines will be protected from subsidence damage provided that it

includes a commitment to repair or pay compensation for subsidence damage that occurs to the

pipelines

Suggested Answer Yes

STATEMENT OF THE CASE

The Marshall County Coal Company (Marshall Coal) applied for and obtained a permit

to conduct longwall mining beneath federally-regulated high-pressure interstate gas transmission

pipelines that Texas Eastern Transmission LP (Texas Eastern) owns and operates As the

Circuit Court of Marshall County (Marshall County Court or Circuit Court) explained the

permit application middotsubmitted by Marshall middotCoal included a commitment to repair or paymiddot

compensation for subsidence damage that it causes to structures like the pipelines as a result of

conducting mining operations beneath them The application however did not demonstrate how

Marshall Coal would seek to protect the pipelines from subsidence damage in the first place

Addressing this situation the Marshall County Court affirmed the determination of the West

Virginia Surface Mine Board (Board) that mine permit applications must describe the

measures to be taken to either mitigate subsidence damages to pipelines prior to mining or to

remedy subsidence damage but do not require mine operators to describe both[] This

determination is in error Mine operators like Marshall Coal have a statutory and regulatory

obligation to describe both

1

Relevant Factual and Evidentiary Background

The Marshall County Mine is located III Marshall County West Virginia See

Subsidence Control Plan Appendix Record (AR) at 18a Marshall Coal formerly known as

McElroy Coal Company owns and operates the Marshall County Mine In August of 2008

Marshall Coal submitted an application to the West Virginia Department of Environmental

Protection (Depmiment) for a revision (Revision 33) to the mine permit for the Marshall

County Mine (Permit No U003383) See Marshall County Courts Findings of Fact

Conclusions of Law and Order (Opinion) Findings of Fact at ~ 1 AR at 4a

Texas Eastern operates four interstate gas transmission pipelines (Pipelines) that cross

the pennit area for Revision 33 from the southwest to the northeast over a distance of

approximately four miles Affidavit of William Webster (Webster Affidavit) at ~[ 2 amp 11

AR at 67a amp 69a 1 Texas Eastern operates the Pipelines under the authority of~ and in

accordance with certificates of public convenience and necessity that themiddot Federal Energy

Regulatory Commission issued to it Webster Affidavit at ~ 2 AR at 67a-68a On a daily

basis Texas Eastern transports over two billion cubic feet of natural gas through the Pipelines to

consumers in the mid-Atlantic and Northeastern United States Webster Affidavit at ~ 5 AR at

68a

The gas pressure in the Pipelines varies between approximately 700 and 1000 pounds per

square inch Webster Affidavit at ~ 4 AR at 68a The Pipelines range from 30 to 36 inches in

diameter are constructed of welded steel pipe and are buried at a depth of approximately three

Texas Eastern filed the Webster Affidavit with the West Virginia Surface Mine Board in the consolidated administrative appeals at Board Docket Nos 2008-I6-SMB and 2008-I9-SMB referred to below as the Revision 33 Appeals

2

feet or more Webster Affidavit at ~~ 4 amp 6 AR at 68a The Pipelines have limited tolerance

for ground movement Webster Affidavit at ~ 6 AR at 68a

In the application for Revision 33 instead of demonstrating how it will protect the

Pipelines from subsidence Marshall Coal proposes to conduct longwall mining under them in a

manner that would subside them beyond their tolerance for ground movement Webster

Affidavit at ~ 12 AR at 69a

It is possible however to protect the Pipelines from the proposed mining and subsidence

One option would be to leave sufficient coal in place beneath them so that subsidence does not

occur Webster Affidavit at ~ 7 AR at 69a Another option available in some areas depending

on the terrain and surface features would be to uncover and support the Pipelines until the risk of

subsidence has passed and then rebury them Webster Affidavit at ~ 9 AR at 69a However if

nothing is done to protect the Pipelines from subsidence they will be destroyed which will

present a significant threat to public health and safety and disrupt a vital energy supply Webster

Affidavit at ~~ 13 amp 15 AR at 70a

Marshall Coals application for Revision 33 includes a subsidence control plan Opinion

Findings of Fact at ~ 2 AR at 4a see also Subsidence Control Plan AR at 18a-24a As paI1 of

the subsidence control plan Marshall Coal completed a survey of surface structures Subsidence

Control Plan AR at 18a As part of the survey Marshall Coal provided the Department with a

series of drawings (Nos B06-029-M2 B06-029-M3 and B06-029-M4) that show surface

structures that overlie the permit area for Revision 33 ld One of the drawings No B06-029-

M2 depicts the Pipelines Drawing No B06-029-M2 AR at 24a But nowhere in the

subsidence control plan or elsewhere in the application for Revision 33 did Marshall Coal

specify measures that it will take to protect the Pipelines from the harm that subsidence would

3

cause to them and the public health and safety Instead as the Marshall County Court found

Marshall Coal stated in its subsidence control plan only that [m]ining beneath gas pipelines will

be handled per common law practices and severance deeds between the pipeline owner and

[Marshall Coal] Opinion Findings of Fact at ~ 4 AR at 4a-5a see also Subsidence Control

Plan at 4 AR at 21a2

ProceduralJlistory

On November 25 200S the Department approved Revision 33 Opinion Findings of

Fact at ~ 6 AR at 5a see also Significant Revision Approval AR at 15a-17a On December

23 200S Texas Eastern appealed that decision to the Board Opinion Findings of Fact at ~ 7

AR at 5a see also Petition for Appeal AR at 54a-64a In its notice of appeal Texas Eastern

asserted among other things that the application for Revision 33 was deficient because within

it Marshall Coal failed to (i) demonstrate that it will conduct its mining operations in a way that

protects the Pipelines and the essential public service that they provide and (ii) specify in itsmiddot

subsidence control plan the measures that it will take to protect the Pipelines from material

damage Opinion Findings of Fact at ~ 7 AR at 5a see also Notice of Appeal AR at 56a-5Sa

amp 60a-6Ia

The Board consolidated Texas Easterns appeal with an appeal that Columbia Gas

Transmission Corporation (Columbia) had taken from the Departments approval of Revision

Marshall Coal also provided Texas Eastern with certain subsidence procedures As with its application for Revision 33 however it did not specify in the subsidence procedures how it will protect the Pipelines Instead it stated that it will (i) prepare and provide pipeline operators with mining maps and updates (ii) give pipeline operators six months advance notice of undermining their pipelines and (iii) meet with pipeline owners to discuss mitigation procedures that will be implemented by the [pipeline] owner AR at 34Sa-350a

4

2

33 (together the Revision 33 Appeals3) Opinion Findings of Fact at ~ 8 AR at 6a see also

Stipulation amp Joint Motion for Entry of Final Order (Stipulation) at ~ 2 AR at 73a At the

time an earlier set of appeals (the Consol Appeals4) involving substantially the same legal

issues was pending before the Board Opinion Findings of Fact at ~ 9 AR at 6a Columbia

had taken those appeals from the Departments June 28 2008 renewal of the mine permit for the

Bailey Deep Mine (Permit No U20060 1) held by Consolidation Coal Company (Consol) and

the Departments March 27 2008 approval of Revision 31 to the mine permit for the Shoemaker

Mine (Permit No U 1 02591) likewise held by Consol See Opinion at 1-2 AR at 1 a-2a

The parties to the Revision 33 Appeals including the Depmiment and Marshall Coal

entered into a stipulation providing that the Revision 33 Appeals would be resolved at the

administrative level by the final order that the Board would issue in the Consol Appeals

Opinion Findings of Fact at ~ 9 AR at 6a see also Stipulation at ~ 8 AR at 74a

On Februm) 18 2009 the Board issued the final order in the Consol Appeals (Consol

Final Order) Opinion Findings of Fact at ~ 10 AR at 6a see also AR at 377a On March

26 2009 the Board issued a final order in the Revision 33 Appeals (Revision 33 Final Order)

Opinion Findings of Fact at ~ 11 AR at 6a see also AR at 384a Consistent with the parties

stipulation the Revision 33 Final Order disposed of the Revision 33 Appeals for the same

reasons and on the grounds set forth in the Consol Final Order See Revision 33 Final Order

AR at 384a

By incorporation of the Consol Final Order the Board effectively made the following

determination in the Revision 33 Final Order

3 Board Docket Nos 2008-16-SMB and 2008-19-SMB Opinion Findings of Fact at ~ 8 n3 AR at 6a

4 Board Docket Nos 2008-05-SMB and 2008-13-SMB Opinion Findings of Fact at ~ 9 AR at 6a

5

5

Mine permit applications must describe the measures to be taken to either mitigate subsidence damages to pipelines prior to mining or to remedy subsidence damage but do not require mine operators to describe both

Consol Final Order AR at 382a5

On April 29 2009 Texas Eastern appealed the Boards determination to the Circuit

Court of Kanawha County Opinion Findings of Fact at ~ 14 AR at 7a Columbia separately

appealed the same determination to the same court except that it appealed not only from the

Revision 33 Final Order but also from the Consol Final Order Opinion at 3 AR at 3a Con sol

and Marshall Coal for their part appealed a different Board determination to the Marshall

County Com1 with Consol appealing from both the Consol Final Order and Revision 33 Final

Order and Marshall Coal appealing from the Revision 33 Final Order alone See Opinion at 3

AR at 3a On July 20 2010 consistent with a September 92009 agreed order that the Marshall

The -Board also effectively made the following determinations

Texas Easterns interstate gas transmission pipelines are structures for purposes of the Departments mining regulations and regardless of any common law deed waivers Marshall Coal is required to either correct material damage caused to any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from the subsidence (quoting WV CSR sect 38-2-162c2)

As to the arguments of Marshall Coal and Consol that the regulation [at WV CSR sect 38-2-162c2] is impermissibly more stringent than parallel provisions of federal law [the Board] does not have the authority to decide challenges to the effectiveness of WVDEPs rules and that any such determination should be left to a court of competent jurisdiction

Consol Final Order AR at 380a amp 382a The Marshall County Courts rulings that pertain to these determinations are the subject of a separate appeal by Marshall Coal that js pending with this Court See Appeal No 16-0877

6

County Court had issued the Circuit Court of Kanawha County transferred the Texas Eastern

and Columbia appeals to the Marshall County Court where they were consolidated with the

Consol and Marshall Coal appeals Opinion at 3 amp Findings of Fact at ~ 16 AR at 3a amp 7a

On October 7 2013 Columbia voluntarily dismissed its appeals See Stipulation of

Dismissal AR at 513a-514a On March 8 2016 Consol voluntarily dismissed its appeals See

Stipulation of Dismissal AR at 515a-516a

On August 5 2016 the Marshall County Court decided the Texas Eastern and Marshall

Coal appeals affirming the Board in all respects See Opinion at 14 AR at 14a

On September 62016 Texas Eastern appealed to this Court from the decision of the

Marshall County Court to affirm the Boards determination that mine permit applications must

describe the measures to be taken to either mitigate subsidence damages to pipelines prior to

mining or to remedy subsidence damage but do not require mine operators to describe both

On September 21 2016 this Court issued a scheduling order which sefDecember 62016 as the

deadline for filing Texas Easterns opening brief and the appendix in this appeal

SUMMARY OF THE ARGUMENT

The Marshall County Court erred by affirming the Boards determination that mine

permit applications must describe the measures to be taken to either mitigate subsidence

damages to pipelines prior to mining or to remedy subsidence damage but do not require mine

operators to describe both[] Under West Virginia law a mine permit application must not only

include a commitment to repair or pay compensation for subsidence damage that occurs to

pipelines (like the application here) but also must demonstrate how pipelines will be protected

from subsidence damage in the first instance (which the application here failed to do)

7

In its application for Revision 33 Marshall Coal failed to meet its burden under WV CSR

sect 38-2-332a (Section 332a) of demonstrating that it will comply with the utility protection

standard at WV CSR sect 38-2-1417 (Section 1417) because it failed to demonstrate that its

mining operations will be conducted in a manner which minimizes damage destruction or

disruption of services provided by pipelineswhich pass over the permit area including the

Pipelines The utility protection standard is modeled after a nearly identical performance

standard that the federal Office of Surface Mining Reclamation and Enforcement (OSM)

adopted pursuant to the federal Surface Mining Control and Reclamation Act (SMCRA)

Under SMCRA West VirginiaS mining program cannot be construed as imposing a regulatory

framework that is any less stringent than the federal one And in adopting the federal standard

OSM made a clear pronouncement that a mine permit applicant by its application must

demonstrate that it will comply with all applicable performance standards that govern

underground mining including the utility protection standard Because Marshall Coals

application fails to show that it will comply with the utility protection standard with respect to

the Pipelines the application is deficient and the Circuit Court erred by upholding the Boards

affirmance of the Departments approval of Revision 33

Additionally in the subsidence control plan in its application for Revision 33 Marshall

Coal failed to comply with WV CSR sect 38-2-3l2d2 (Section 3l2d2) by failing to indicate

what measures will be taken to minimize material damage or reduction in value or reasonably

foreseeable use of structures such as the Pipelines Contrary to the Marshall County Courts

conclusion the provision at WV CSR sect 38-2-3l2a6 (Section 312a6) does not allow

Marshall Coal to avoid this obligation by identifying in its subsidence control plan the measures

that it will take to remedy (i c repair or pay compensation for) subsidence damage that occurs to

8

structures Section 312a6 instead requires Marshall Coal to identify those remedial measures

as an obligation that is independent of and in addition to Section 3 12d2 s command that it

identify the measures that it will take in advance to minimize material damage or reduction in

value or reasonably foreseeable use By concluding otherwise the Marshall County Court failed

to recognize the independent obligations that Section 312d2 creates for longwall mining

operations like those of Marshall Coal to minimize material damage in advance rather than

simply repairing or compensating for such damage under Section 312a6 after the fact Under

the Marshall County Courts interpretation mining companies like Marshall Coal would be

entirely unconstrained in the amount of damage that they could cause to surface structures

provided that they agreed to repair or pay compensation for the damage If this interpretation is

upheld the separate requirements for longwall mining companies to minimize such damage in

the first instance would be rendered meaningless

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

middotBecause this appeal involves complex issues of first impression this Courts process of

deciding the appeal would be significantly aided by oral argument Therefore under Rule 18(a)

oral argument is necessary

Because the issues at hand are issues of first impression and likewise issues of

fundamental public importance - dealing with the protection of interstate gas pipelines and

essential public services being severely disrupted from mine subsidence damage - this appeal

should be set for a Rule 20 argument

ARGUMENT

Because the assignment of error in this appeal turns exclusively on issues of statutory and

regulatory construction which are issues oflaw this Court reviews de novo the Marshall County

9

Courts determination of those issues See Appalachian Power Co v State Tax Dept of West

Virginia 466 SE2d 424432-33 (WVa 1995) (Interpreting a statute or a regulation presents a

purely legal question subject to de novo review)

I AN APPLICANT FOR A LONGWALL MINE PERMIT IN WEST VIRGINIA IS OBLIGATED BY REGULATION TO DEMONSTRATE IN ITS APPLICATION HOW HARM TO NATURAL GAS PIPELINES AND NATURAL GAS PIPELINE SERVICE WILL BE MINIMIZED OR REDUCED

This case presents the question of whether a mining company may be permitted to

conduct longwall mining beneath interstate natural gas pipelines without regard to the damage

that such mining and related mine subsidence will cause to the pipelines and the consequent

harm to public health and safety The Marshall County Court concluded that a mine permit may

authorize such mining activities without regard to their consequences provided that the mining

company states that it will repair the damage or compensate the pipeline Owner That decision is

inconsistent with longstanding regulatory requirements at both the state and federal level that

require mine operators to minimize damage to pipelines and disruption of pipeline service It is

also inconsistent with longstanding subsidence control regulations that require mine operators to

identify the measures that will be taken to minimize material damage to or reduction in value or

reasonably foreseeable use of structures such as pipelines In short the approach accepted by

the Marshall County Court which would allow mine operators like Marshall Coal simply to

repair or compensate for the damage they cause rather than identify and make efforts to

minimize such damage beforehand is untenable in the face of West Virginia and federal mining

regulations

The Marshall County Court specifically erred by affirming the Boards determination

(AR at 382a) that mine permit applications must describe the measures to be taken to either

mitigate subsidence damages to pipelines prior to mining or to remedy subsidence damage but

10

do not require mine operators to describe both[] Mine permit applications in fact are required

to describe both They must include both a commitment to repair or pay compensation for

subsidence damage that occurs to pipelines and a demonstration of how pipelines will be

protected from sustaining subsidence damage in the first instance Moreover both measures are

inextricably intertwined and essential and one cannot be implemented without or satisfied by

the other As explained below this obligation to describe both arises from WV CSR sect 38-2shy

332a (Section 332a) in combination with WV CSR sect 38-2-1417 (Section 1417 or WV

Utility Protection Standard) and independently from the subsidence control plan requirements

of WV CSR sect 38-2-312a1 (Section 3l2al ) and WV CSR sect 38-2-3l2d2 (Section

312d2) The mine permit application that Marshall Coal submitted was deficient because

contrary to these requirements it contained no demonstration of how the Pipelines would be

protected from the proposed mining activities Because Marshall Coal did not demonstrate

compliance with all applicable requirements Revision 33 should not have been granted See

WV CSR sect 38-2-332d amp 332dl

A Marshall Coal Was Required But Failed to Demonstrate in Its Application for Revision 33 that It Will Comply with the WV Utility Protection Standard

Under Section 332a Marshall Coal was required to demonstrate in its application for

Revision 33 that it will comply with the WV Utility Protection Standard Marshall Coal failed to

meet this burden because in its application it failed to demonstrate that its mining operations

will be conducted in a manner which minimizes damage destruction or disruption of services

provided by pipelines which pass over the permit area inchiding the Pipelines as required

by Section 1417

11

1 Section 332a required Marshall Coal to demonstrate in its application that it will comply with the WV Utility Protection Standard

Under the West Virginia Surface Coal Mining and Reclamation Act (Act or WV

SCMRA) W Va Code sect 22-3-1 ef seq the Department has issued a number of mining

regulations which make up the West Virginia Coal Surface Mining Rule (Rule) WV CSR sect

38-2-1 ef seq One part of the Rule Section 332a provides that an applicant for a mine permit

or a revIsIon to a mine permit has the burden of establishing that his application is in

compliance with all the requirements of the Act and this rule WV CSR sect 38-2-332a One of

those requirements is the WV Utility Protection Standard codified in Section 1417 By its plain

language therefore Section 332a required Marshall Coal to demonstrate in its application for

Revision 33 that it will comply with Section 1417 See Curnutte v Callaghan 425 SE2d 170

175 (WVa 1992) (When the language of a regulation promulgated pursuant to the West

Virginia Surface Mining and Reclamation Act W Va Code 22A-3-1 et seq is clear and

unambiguous the plain meaning of the regulation is to be accepted and followed without

resorting to the rules of interpretation or construction) (internal quotation omitted)

This point is bolstered by considering the relationship between the WV Utility Protection

Standard and federal law The WV Utility Protection Standard provides in pertinent pan that

[a]II surface mining operations shall be conducted in a manner which minimizes damage

destruction or disruption of services provided by pipelines which pass over the permit area

unless otherwise approved by the owner of those facilities and the Secretary WV CSR sect 38-2shy

1417 This standard is modeled after a nearly identical performance standard (the Federal

Utility Protection Standard) that the federal Office of Surface Mining Reclamation and

Enforcement (OSM) adopted under the Surface Mining Control and Reclamation Act

(SMCRA) 30 USC sect 1201 et seq The Federal Utility Protection Standard 30 CFR sect

12

817180 is among the standards that OSM adopted to set the minimum environmental

protection performance standards to be adopted and implemented under [state] regulatory

programs for underground mining activities 30 CFR sect 8171 Under SMCRA therefore

West Virginias mining program including the WV Utility Protection Standard cannot be

construed as imposing a regulatory framework that is any less stringent than the federal one See

30 USc sect 1255(a) 30 CFR sect 73011(a) Hodel v Virginia Surface Mining amp Reclamation

Assn Inc 452 US 264 289 (1981) (SMCRA establishes federal minimum standards

governing surface coal mining which a State may either implement itself or else yield to a

federally administered regulatory program) (emphasis added) Rose v Oneida Coal Company

Inc 466 SE2d 794 798 (WVa 1995) (West Virginias mining program must be construed as

no less stringent than federal mining program)6

Not only does Section 332a make it clear that a mme permit applicant must

demonstrate in its application that it will comply with the WV Utilitymiddot Protection Standard (themiddot

applicant bears the burden of establishing that his application is in compliance with all the

requirements of the Act and this rule) but so too do statements that OSM made when it adopted

the federal mining program under SMCRA In particular in adopting the federal program OSM

pronounced that a mine permit applicant by its application must demonstrate that it will comply

with all applicable performance standards that govern underground mining - which as noted

above include the Federal Utility Protection Standard Specifically OSM stated that mine

permit applications must allow mining regulatory agencies to determine (( the applicant will

conduct proposed underground mining activities according to the requirements of Part 817 of

Although West VirginiaS mining program may not be any less protective than federal law it can provide an even greater level of protection for pipelines and other utility installations See eg 30 USC sect 1255(b)

13

6

Subchapter K [Permanent Program Performance Standards - Underground Mining Activities]

44 Fed Reg 14902 15070 (March 13 1979) (emphasis added) Since the Federal Utility

Protection Standard is one of the requirements of Part 817 of Subchapter K it is clear that OSM

intended for mine permit applications to contain information that allows state mining agencies to

determine if the applicant will conduct the proposed mining activities in accordance with that

standard And since as explained above West Virginias mining program cannot be construed

as imposing a regulatory framework that is any less stringent than the federal program mine

permit applications in West Virginia must contain information that is sufficient to demonstrate

that the applicant will comply with the WV Utility Protection Standard

Although Texas Eastern presented these arguments in its briefing to the Circuit Court

(and the Board)7 the court did not address them at all in its Opinion The court flatly erred in

failing to rule that Marshall Coal was required by Section 332a to demonstrate in its application

that it will comply with the WV Utility Protection Standard

2 Marshall Coal failed to demonstrate in its application that it will comply with the WV Utility Protection Standard

Although the Circuit Court did not reach this point in its analysis the record plainly

shows that Marshall Coal did not specify in its application for Revision 33 how it would conduct

its mining activities in a manner that minimizes damage destruction or disruption of services

provided by the Pipelines as required by Section 332a and the WV Utility Protection

Standard Marshall Coal instead stated only that mining under gas pipelines would be handled

per common law practices and severance deeds between the p~peline owner and [Marshall

See Brief of Texas Eastern Transmission LP (Sept 302009) at 7-14 and Texas Eastern Transmission LPs Proposed Findings of Fact and Conclusions of Law (April 29 2016) at 6-11 both filed in Marshall County Circuit Court Civil Action No 09-CAP-l K See also AR at 355ashy368a

14

7

Coal] Opinion Findings of Fact at ~ 4 AR at 4a-5a see also Subsidence Control Plan AR

at 21a This approach is clearly inadequate under the Rule8 Indeed a number of OSMs

statements that accompanied its adoption of the Federal Utility Protection Standard make it clear

that the federal standard (and by extension the WV Utility Protection Standard) protects

pipelines from mining operations irrespective ofpreexisting common law property rights

In 1979 OSM adopted the Federal Utility Protection Standard and codified it at 30

CFR sect 817181(b) 44 Fed Reg 14902 15278 (March 13 1979) In 1983 OSM reshy

designated Section 817181(b) as current Section 817180 See 48 Fed Reg 20392 20398

(May 5 1983) When OSM originally adopted the Federal Utility Protection Standard it

addressed the interplay between that standard and the common law right to subside land

A commenter argued that the regulations in Section 817 181 (b) should provide an exception when the applicant for a permit possesses a severance deed specifically granting subsidence relief However the Act requires minimization of adverse eflects of mining including subsidence damage The suggestion was rejected because agreements between private parties alone will not be permitted to undermine the protection of public values guaranteed by the Act Accordingly regulatory authority approval is required under the final phrase of Section 817181 (b) Subsidence is discussed in detail under Sections 78420 and 817121-817126 of the final regulations

44 Fed Reg 14902 15279 (March 13 1979) (emphasis added) Elsewhere in the initial

regulatory preamble OSM explained the relationship between its performance standards and

private property rights (such as the right to subside land) as follows

Marshall Coals additional suggestion that it will meet the WV Utility Protection Standard by providing Texas Eastern with advance notice of mining along with mining maps mining updates and other communications so that Texas Eastern can protect its own Pipelines also is inadequate It is Marshall Coal not Texas Eastern who bears the burden of complying and demonstrating compliance with the WV Utility Protection Standard Marshall Coal cannot avoid or shift this burden simply by providing notice and mapping to Texas Eastern

15

8

One commenter argued that this Section [816181 (b)] should explicitly provide that it does not attempt to adjudicate relative property rights if a health or safety hazard is not involved The Office believes that the Act requires minimizing the adverse effects of mining and the words unless otherwise approved by the owner and regulatory authority at the end of Section 816181 (b) provides for determinations at least in part by the mineral owners Therefore the suggested language has been rejected by the Office because State laws adequately provide for the relative rights of owners of utilities and mineral grants and the proposed language is unnecessary as repetitive of the self-executing provision in Section 51O(b)(6)(C) of the Act[9j However it should be emphasized that attempts to avoid the requirements of the Act or these rules based on past or future agreements between private parties will not prove successful except to the extent Congress has mandated their acceptance

44 Fed Reg at 15262 (emphasis added) 10 Similarly in the preamble to sect 817121 (Subsidence

control General requirements) OSM stated

Several comments on this Section stated that operators who own the surface above an underground mine as well as the mine should be exempt from subsidence control plans and operators should be exempt in areas where the surface owner agrees to accept subsidence and damage to structures either by formal waiver or by an unspecified form of agreement ll1is concept was rejected by the Office because Section 516(b)( 1) of the Act specifically protects the surface environment for the present and future regardless of ownership The Act does not contemplate that private parties can by contract or purchase of resources void the Congressional mandate for environmental and other property protection

9 Section 51O(b)(6)(C) of SMCRA identifies information that must be included in a mine permit application and provides that in cases where a private mineral estate has been severed from a private surface estate if the conveyance does not expressly grant the right to extract coal by surface mining methods the surface-subsurface legal relationship shall be determined in accordance with State law Provided That nothing in this Act shall be construed to authorize the regulatory authority to adjudicate property rights disputes 30 USC sect1260(b)(6)(C) 10 Section 81sect181 protected utility installations from surface mining operations The preamble to Section 811181 directs the reader to the preamble to Section 81sect181 for discussion of issues relevant to this Section 44 Fed Reg at 15278

16

44 Fed Reg at 15274 (emphasis added) Likewise in the preamble to sect 817126 (Subsidence

control Buffer zones) OSM stated

Commenters suggested that only mining activity likely to cause subsidence should be regulated by Section 817126 and that mining should be permitted under structures where planned subsidence would cause no damage where surface owners were suitably compensated or where a deed granting relief exists These suggestions were rejected because language regulating only mining likely to cause subsidence violates the Act which calls for measures to prevent material damage and the fact that its likelihood is remote does not warrant an exemption from the requirement The regulations as written cover both planned and unplanned subsidence and provide protection to public buildings in accordance with Section 516( c) of the Act The contents of a deed are irrelevant to preserving the value and foreseeable use of surface features

44 Fed Reg~ at 15276 (emphasis added)

These statements by OSM show that the Federal Utility Protection Standard (and by

extension the WV Utility Protection Standard) must prevail over any common law right that a

mine operator might otherwise possess to conduct its mining operations in a way that does not

minimize damage destruction or disruption of services provided by a pipeline

This Court in fact has recognized that the WV SCMRA and its implementing

regulations alter property and contract rights including any waiver of the right to subjacent

support See eg AntcD Inc v Dodge Fuel Corp 550 SE2d 622 629-30 (WVa 2001)

(Under the West Virginia common law of property the well recognized and firmly established

rule is that when a landowner has conveyed the minerals underlying the surface of his land he

retains the right to the support of the surface in its natural state but the owner of the land may

release or waive his property right of subjacent support by the use of language that clearly shows

that he intends to do so however this law has been modified to some extent by the enactment of

the West Virginia Surface Coal Mining and Reclamation Act[]) (internal quotation omitted)

17

This point is well-illustrated by Rose v Oneida Coal Company Inc 466 SE2d 794

(WVa 1995) In Rose this Court construed and applied regulations that were issued under a

provision of the WV SCMRA W Va Code sect 22A-3-14 (now W Va Code sect 22-3-14) and a

provision ofSMCRA 30 USC sect 1266 The regulations require a mine operator to correct any

material damage to surface land that results from subsidence that stems from its underground

mining activities The Court acknowledged that if the operator fails to meet this obligation and

as a consequence commits a violation under both of the regulatory programs the owner of the

surface land may assert a claim for damages under either W Va Code sect 22-3-25(f) or its federal

counterpart 30 USc sect 1270(f) The Court explained that even if prior to the damage

occurring the surface owner had - by private contract - waived the right to have the surface land

supported by the mine operator he may nevertheless assert a claim

The defendant contends that the right to asseli subsidence damage to the surface can be waived by the surface owner citing Rose I [ie Rose v Oneida Coal Company Inc 375 SE2d 814 (WVa 1988)] where we held that under the common law right to surface support a landowner could waive this right by appropriate language Here however we deal with a statutory right 10 restore sUIace land damaged by subsidence from underground mining There is nothing in W Va Code 22A-3-14 [now W Va Code sect22shy3-14] nor itsfederal counterpart in 30 Usc sect 1266 that allows a landowner to waive this statutory right as was permitted in 30 USc sect1307 and W Va Code 22A-3-24(b) [now W~ Va Code sect22-3-24(b)] relating to the loss of surface water through surface mmmg

ld at 801 (emphasis added)

The WV Utility Protection Standard is among the implementing regulations of WV

SCMRA that effectively condition a mine operators common law right to conduct mining

operations in a way that subsides land - in particular in a way that subsides a pipeline right-ofshy

way Accordingly Marshall Coals reference in its permit application to common law

practices and severance deeds is insufficient to show that it will comply with the WV Utility

18

Protection Standard To make that showing Marshall Coal was required but failed to

demonstrate that it will conduct its mining activities in a manner that minimizes damage

destruction or disruption of services provided by the Pipelines as required by Section 1417

B Marshall Coal Was Required But Failed To Specify in Its Subsidence Control Plan How It Will Protect the Pipelines from Subsidence

Separate and distinct from its obligation to demonstrate that it will comply with the WV

Utility Protection Standard Marshall Coal also failed to comply with the application and

subsidence control plan requirements of Section 312al and Section 312d2 Contrary to the

Circuit Courts opinion the requirements of Sections 312a1 and 312d2 are independent of

and apply to Marshall Coal separately from the requirements of WV CSR sect 38-2-312a6

(Section 312a6)

1 Marshall Coal failed to comply with Sections 312al and 312d2

Sections 3l2al and 312d2 establish that a subsidence control plan must include

312al A survey that identifies on a topographic map of a scale of 1 = 1 000 more structures perennial and intermittent streams or renewable resource lands and a narrative indicating whether or not subsidence could cause material damage or diminution of value or use of such structures or renewable resource lands both on the permit area and adjacent areas within an angle of draw of at least 30deg unless a greater area is specified by the Secretary

3l2d Where longwall mining or room and pillar mining with 80 recovery or greater is proposed the following information shall be made a part of the plan

3l2d2 For all areas identified by the survey indicate what measures will be taken to minimize material damage or reduction in value or reasonably foreseeable use Indicate those areas in which measures are to be taken Such measuresmay include but not be limited to relocating panels mining without interruption exposing gas lines supporting foundations of structures and insuring that any damage is repaired

19

WV CSR sect 38-2-312al and 312d2 (emphasis added)

For purposes of these regulations material damage means any functional impairment

of structures or facilities any physical change that has a significant adverse impact on the

affected lands capability to support current or reasonably foreseeable uses or causes significant

loss in production or income or any significant change in the condition appearance or utility of

any structure from its pre-subsidence condition WV CSR sect 38-2-162c Structure is defined

as any man-made structures within or outside the permit areas which include but is not limited

to dwellings outbuildings commercial buildings public buildings community buildings

institutional buildings gas -lines water lines towers airports underground mines tunnels and

dams WV CSR sect 38-2-2119 (emphasis added) As the Department determined and the Board

and Marshall County Court agreed gas pipelines including the Pipelines are structures See

Opinion Conclusions of Law at r 12 amp 22 AR at lOa-II a amp 13a see also Consol Final Order

AR at 381a-382a

Accordingly under Sections 312al and 312d2 Marshall Coal was obligated to

include in its subsidence control plan (and hence its application)

(I) A survey that identifies structures within the area that it proposes to mine and subside along with a narrative in which it indicates whether or not subsidence could cause material damage or diminution of value or use of such structures and

(2) For all areas that the survey I I identifies an indication of what measures will be taken to minimize

The survey that is referenced in Section 312d2 is the survey that Section 312a1 requires not the more specialized and limited survey that Section 312a2 requires The Section 312a2 survey is not one that identifies areas as stated in Section 312d2 but rather one that assesses the condition of all non-commercial building or residential dwellings and structures related thereto[] Section 3 12d2s reference to a survey is therefore properly read as a reference to the general subsidence survey that is described in Section 3 12al which must identify all structures including commercial structures like pipelines

20

II

(a) Material damage ie (i) any functional impairment of the Pipelines (ii) any physical change that causes significant loss in production by the Pipelines or (iii) any significant change in the condition appearance or utility ofthe Pipelines from [their] pre-subsidence condition or

(b) Reduction in the value or reasonably foreseeable use of the Pipelines

Although it includes a survey that identifies the Pipelines Marshall Coals subsidence control

plan is deficient because it lacks (I) a narrative in which it indicates whether or not subsidence

could cause material damage or diminution of value or use of the Pipelines and (2) any

indication of what measures will be taken to minimize material damage or reduction in value or

reasonably foreseeable use of the Pipelines

In addressing Section 312d2s requirements the Circuit Court emphasized the word

or in the first sentence of Section 3 12d2 as follows For all areas identified by the survey

indicate what measures will be taken to minimize material damage or reduction in value or

reasonably foreseeable use Opinion Conclusions of Law at ~ 5 AR at 9a Although the

court did not explain why it emphasized the or it might have been suggesting that the

provision gives an applicant a choice of whether to minimize material damage or reduction in

value or reasonably foreseeable use That reading of Section 312d2 however is misguided

The use of the alternative in the provisions first sentence simply recognizes that the narrative

required by Section 312a1 must identify whether subsidence could cause material damage or

diminution of value or use of the structures identified in the survey Reading the provisions

together if subsidence could cause material damage to a structure identified in the survey then

the narrative must identify the structure and the potential damage and if Section 3l2d applies

(longwall mining or room and pillar mining with 80 or greater removal) the subsidence

control plan must identify what measures will be taken to minimize the material damage

However if subsidence could cause diminution in value of a structure identified in the survey

21

then the narrative must identify the structure and the potential reduced value and if Section

312d applies the subsidence control plan must identify what measures will be taken to

minimize the reduction in value Finally if subsidence could cause diminution of use of a

structure identified in the survey then the narrative must identify the structure and the potential

reduced use and if Section 312d applies the subsidence control plan must identify what

measures will be taken to minimize the reduction in use Accordingly the use of the word or

in Section 312d2 is not intended to create a choice for the applicant but rather parallels the

structure of Section 3 l2al which in the first instance defines the scope of the information to be

included 12

In the subsidence control plan in its application for Revision 33 Marshall Coal did not

include any of the information that Sections 312al and 312d2 require with respect to the

Pipelines except that it identified the Pipelines in its survey This is clearly inadequate under the

rules 13

2 Section 312d2 is separate from Section 312a6

In addition contrary to what the Marshall County Court found see Opinion Conclusions

of Law at ~~ 3-6 amp 10 AR at 9a amp lOa the requirements of Section 312d2 are separate and

distinct from the requirements of Section 3l2a6 The requirement of Section 3l2d2 to

12 It is analytically immaterial that as the Marshall County Court pointed out Section 312d2 refers to certain types of mitigation measures which may be undertaken but does not require any particular mitigation action Opinion Conclusions of Law at ~ 6 AR at 9a The point is that under Section 312d2 the applicant is required to select and identify which mitigation measures (from among potential options) it will take to minimize material damage or reduction in value or reasonably foreseeable use Here Marshall Coal failed to meet that obligation with regard to Texas Easterns Pipelines 13 Moreover as with the WV Utility Protection Standard discussed above supra Part LA2 Marshall Coals reliance on common law practices and severance deeds in lieu of specifying measures that it will take to protect the Pipelines under these provisions also is inadequate

22


reasonably foreseeable use is lot satisfied by describing under Section 3 12a6 the measures that

will be taken to remedy subsidence damage after mining Rather Section 312a6 by its crossshy

reference to Section 162c required Marshall Coal to identify the remedial or mitigation

measures it would take to address material damage resulting from subsidence This obligation is

independent of and in addition to the obligation that Section 312d2 imposes 10 identify the

measures that it will take in advance to minimize material damage or reduction in value or

reasonably foreseeable use of structures like the Pipelines

Section 312a6 states that a subsidence control plan must include a description of the

measures to be taken in accordance with [Sections] 162a 162c and 162d of this rule to

mitigate or remedy any material damage or diminution in value or foreseeable use that may

occur to surface lands structurcs or facilities due to subsidence WV CSR sect 38-2-3l2a6

Section 3l2a6 therefore requires the mine permit applicant to specify how it will comply with

Sections 162a 162c and 162d This obligation applies to all applicants for underground coal

mine permits See WV CSR sect 38-2-312a

Separately if longwall mining or room and pillar mining with 80 or greater recovery is

proposed Section 312d2 requires the applicant to indicate what measures it will take to

minimize material damage or reduction in value or reasonably foreseeable use with regard to the

structures that are identified by the survey required by Section 312 aI While Section 312a6

provides that all underground mine permit applicants must describe the measures to be taken in

accordance with [Sections] 162a 162c and 162d of this rule to mitigate or remedy [] the

or does not negate the separate requirement in Section 3l2d2 (applicable to longwall mining

operations like those proposed by Marshall Coal) to indicate which measures will be taken to

23

minimize damage to structures like the Pipelines Instead as the structure of Section 312a6

makes clear the or relates back to the phrase in accordance with [Sections] 162a 162c and

162d of this rule It signals in other words that the applicant must indicate how under each

of those sections it will either mitigate or remedy material damage depending on what the

particular section requires For example Section 162cl requires operators to correct material

damage to surface lands to the extent teclmologically and economically feasible by restoring the

land to a useful condition whereas Section 162c2 allows the operator to either repair damage

to structures or compensate the owner of the structure in the amount of its reduced value The

or in Section 312a6 refers to these alternatives Contrary to the Circuit Courts finding

however these alternatives have nothing to do with the separate requirements of Section

312d2 which only apply to applicants for longwall mining or mining with 80 or greater

recovery

Accordingly by conflating the requirements of Section 312a6 and Section 312d2 and

concluding that a mine permit applicant subject to Section 312d2 can choose between

protecting structures in advance or alternatively repairing or paying compensation for damage

to them after the fact the Circuit Court contrary to West Virginia law did not follow the plain

language of the rules See Curnutte v Callaghan 425 SE2d 170 175 (WVa 1992) (When the

language of a regulation promulgated pursuant to the West Virginia Surface Mining and

Reclamation Act W Va Code 22A-3-1 et seq is clear and unambiguous the plain meaning of

the regulation is to be accepted and followed without resorting to the rules of interpretation or

construction) (internal quotation omitted)

In fact the Circuit Courts interpretation renders Section 3l2d2 meaningless If as the

Circuit Court says permit applicants are allowed to choose between describing measures that

24

they will take to mitigate subsidence damages prior to mining or measures that they will take to

remedy subsidence damages after mining there is no reason for the requirement in Section

312d2 applicable to only certain applicants for the applicant to indicate how it will minimize

subsidence damages in advance of mining The stand-alone requirement in Section 312d2 is

effectively read out of the rule by the Circuit Courts interpretation But courts should not

interpret regulatory provisions so as to render them meaningless See PNGI Charles Town

Gaming LLC v Reynolds 727 SE2d 799 808 (WVa 201 I) (rejecting an interpretation that

would render the Legislative rule meaningless)

The Marshall County COUl1s conclusion moreover is at odds with the rule of regulatory

interpretation that the specific controls the general See Vance v West Virginia Bureau of

Employment ProgramsElkins Job Service 619 SE2d 133 136 (WVa 2005) (It is generally

accepted that statutes and administrative regulations are governed by the same rules of

construction [And] typically when two statutes govern a particular scenario one being

specific and one being general the specific provision prevails) (internal quotations omitted)

On this point Section 3l2a contains general requirements that apply to every application for an

underground coal mining permit See WV CSR sect 38-2-312a Section 312d by contrast

applies specifically and only to applications for mining in areas [w]here longwall mining or

room and pillar mining with 80 recovery or greater is proposed See WV CSR sect 38-2-3l2d

To the extent there is any conflict between them therefore Section 3 I 2d2 would control in this

situation and require Marshall Coal to identify in its subsidence control plan what measures it

will take to minimize material damage or reduction in value or reasonably foreseeable use

The Marshall County Court found that the subsidence control plan submitted by Marshall

Coal was sufficient because it states that Marshall Coal would restore damaged land or structures

25

or compensate the owner The court concluded that this commitment to repair or compensate

after-the-fact satisfied the requirements of Section 3 12a6 Section 16c2 and Section 312d2

See Opinion Conclusions of Law at ~ 11 AR at 10a This conclusion is patently wrong at

least with respect to Section 312d2 because Section 312d2 speaks in terms of minimizing

material damage or reduction in value or reasonably foreseeable use By definition material

damage or reduction in value or use cannot be minimized after the fact By that point in time

the material damage or reduction in value or use has already occurred and it can only (at most)

be remedied repaired or mitigated but not minimized Minimization in other words is a

prospective concept that must be accomplished in advance something that Marshall Coal has

entirely failed to do with respect to the harm that its mining will cause to the Pipelines

C The Marshall County Courts Conclusion Is Inconsistent with Key Objectives of the WV SCMRA and Its Implementing Regulations

Through the WV SCMRA West Virginia has exercised its police power to protect the

public and the environment from the adverse effects of surface-mining operations W Va

Code sect 22-3-2(b)(l) In this regard the Act [a]ssures that the rights of surface and mineral

owners and other persons with legal interest in the land or appurtenances to land are adequately

protected from [mining] operations W Va Code sect 22-3-2(b)(2) The Act moreover

[a]ssure[s] the exercise of the full reach of state common law statutory and constitutional

powers for the protection of the public interest through effective control of surface-mining

operations W Va Code sect 22-3-2(b)(7) In carrying out these objectives of protecting the

public the Department has adopted regulations discussed above that require mine permit

applicants to demonstrate in their applications how they will protect pipelines and other surface

structures from the harmful effects of the subsidence that will be caused by their proposed

mining activities

26

By concluding however that mine permit applications must describe the measures to be

taken to either mitigate subsidence damages to pipelines prior to mining or to remedy subsidence

damage but do not require mine operators to describe both[] the Marshall County Court

frustrated the goal of protecting the public interest through effective control of surface mining

operations and the goal of assuring that the rights of persons with legal interests in land and

appurtenances to land are adequately protected from mining operations Under the Circuit

Courts interpretation mining companies like Marshall Coal would be entirely unconstrained in

the amount of damage that they could cause to pipelines provided that they agreed to repair or

pay compensation for the damage That framework would not protect the public interest

Rather it would increase the possibility of pipeline failures and disruptions of a vital energy

supply It would also render meaningless the separate obligations under West VirginiaS

regulations for longwall mining companies to minimize such damage in the first instance

27

CONCLUSION

For the foregoing reasons this Court should (i) reverse the Marshall County Courts

decision that Marshall Coal is not required to specify in its application for Revision 33 the

measures that it will take to minimize damage to the Pipelines and (ii) remand this matter to the

Board for it to conduct further proceedings in light of and consistent with that reversal

Respectfully submitted

~----Kent 1 eorge (~842)W Bradley Sorrells (WV ID 4991)

- Craig P Wilson Anthony R Holtzman

Robinson amp McElwee PLLC KampL Gates LLP 400 Fifth Third Center 17 North Second Street 18th Floor 700 Virginia Street East Harrisburg PA 17101-1507 Post Office Box 1791 Phone 717-231-4509 Charleston West Virginia 25301 Fax 717-231-4501 Phone 304-344-5800 QCoul1se (Admitted Pro Hac Vice) Fax 304-344-9566 Counsellor Petitione) Texas Eastern Transmission LP December 6 2016

28

CERTIFICATE OF SERVICE

I W Bradley Sorrells hereby certify that the foregoing Brief was served upon the

following persons by US Mail on this 6th day of December 2016

Jacob Manning Dinsmore amp Shohl LLP

Bennett Square 2100 Market Street

Wheeling WV 26003 (304) 230-1604

jacobmanningdinsmorecom

Charles Driver Office of Legal Services

601 57th Street Charlestown WV 25304

(304) 926-0460 charlessdriverwvgov

TABLE OF CONTENTS

ASSIGNMENT OF ERROR 1

STATEMENT OF THE CASE 1

Relevant Factual and Evidentiary Background 2

Procedural History 4

SUMMARY OF TI-IE ARGUMENT 7

STATEMENT REGARDING ORAL ARGUMENT AND DECISION 9

ARGUMENT 9

I AN APPLICANT FOR A LONGW ALL MINE PERMIT IN WEST VIRGINIA IS OBLIGA TED BY REGULATION TO DEMONSTRATE IN ITS APPLICATION HOW HARM TO NATURAL GAS PIPELINES AND NATURAL GAS PIPELINE SERVICE WILL BE MINIMIZED OR REDUCED 10

A Marshall Coal Was Required But Failed to Demonstrate in Its Application for Revision 33 that It Will Comply with the WV Utility Protection Standard 11

1 Section 332a required Marshall Coal to demonstrate in its application that it will coniply with the WV Utility Protection Standard 12

2 Marshall Coal failed to demonstrate in its application that it will comply with the WV Utility Protection Standard 14

B Marshall Coal Was Required But Failed To Specify in Its Subsidence Control Plan How It Will Protect the Pipelines from Subsidence 19

1 Marshall Coal failed to comply with Sections 312al and 3 12d2 19

2 Section 312d2 is separate from Section 312a6 22

C The Marshall County Courts Conclusion Is Inconsistent with Key Objectives of the WV SCMRA and Its Implementing Regulations 26

CONCLUSION 28


Page(s)

Federal Cases


State Cases







Federal Statutes


30 USC sect 1255(a) 13

30 USC sect 1255(b) 13

30 USC sect1260(b)(6)(C) 16

30 USC sect 1266 18

30 USC sect 1270(f) 18

State Statutes


ii






Federal Regulations

30 CFR sect 73011 (a) 13

30 CFR sect 816181 16

30 CFR sect 8171 13

30 CFR sect 817121 16

30CFR sect 817126 17


30 CFR sect 817181(b) 15


44 Fed Reg at 15262 (March 13 1979) 16

44 Fed Reg at 15274 (March 13 1979) 17

44 Fed Reg at 15276 (March 13 1979) 17

44 Fed Reg at 15278 (March 13 1979) 15 16

44 Fed Reg at 15279 (March 13 1979) 15

48 Fed Reg at 20398 (May 5 1983) 15

State Regulations


WV CSR sect 38-2-312a 2325


WV CSR sect 38-2-211920


111









WV CSR sect 38-2-162c 20 23 26




Rules



IV

ASSIGNMENT OF ERROR





pipelines

















1

















68a





2
























3






ProceduralJlistory










amp 60a-6Ia




4

2



















AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604






Page(s)

Federal Cases


State Cases







Federal Statutes


30 USC sect 1255(a) 13

30 USC sect 1255(b) 13

30 USC sect1260(b)(6)(C) 16

30 USC sect 1266 18

30 USC sect 1270(f) 18

State Statutes


ii






Federal Regulations

30 CFR sect 73011 (a) 13

30 CFR sect 816181 16

30 CFR sect 8171 13

30 CFR sect 817121 16

30CFR sect 817126 17


30 CFR sect 817181(b) 15


44 Fed Reg at 15262 (March 13 1979) 16

44 Fed Reg at 15274 (March 13 1979) 17

44 Fed Reg at 15276 (March 13 1979) 17

44 Fed Reg at 15278 (March 13 1979) 15 16

44 Fed Reg at 15279 (March 13 1979) 15

48 Fed Reg at 20398 (May 5 1983) 15

State Regulations


WV CSR sect 38-2-312a 2325


WV CSR sect 38-2-211920


111









WV CSR sect 38-2-162c 20 23 26




Rules



IV

ASSIGNMENT OF ERROR





pipelines

















1

















68a





2
























3






ProceduralJlistory










amp 60a-6Ia




4

2



















AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604










Federal Regulations

30 CFR sect 73011 (a) 13

30 CFR sect 816181 16

30 CFR sect 8171 13

30 CFR sect 817121 16

30CFR sect 817126 17


30 CFR sect 817181(b) 15


44 Fed Reg at 15262 (March 13 1979) 16

44 Fed Reg at 15274 (March 13 1979) 17

44 Fed Reg at 15276 (March 13 1979) 17

44 Fed Reg at 15278 (March 13 1979) 15 16

44 Fed Reg at 15279 (March 13 1979) 15

48 Fed Reg at 20398 (May 5 1983) 15

State Regulations


WV CSR sect 38-2-312a 2325


WV CSR sect 38-2-211920


111









WV CSR sect 38-2-162c 20 23 26




Rules



IV

ASSIGNMENT OF ERROR





pipelines

















1

















68a





2
























3






ProceduralJlistory










amp 60a-6Ia




4

2



















AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604













WV CSR sect 38-2-162c 20 23 26




Rules



IV

ASSIGNMENT OF ERROR





pipelines

















1

















68a





2
























3






ProceduralJlistory










amp 60a-6Ia




4

2



















AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604





ASSIGNMENT OF ERROR





pipelines

















1

















68a





2
























3






ProceduralJlistory










amp 60a-6Ia




4

2



















AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604





















68a





2
























3






ProceduralJlistory










amp 60a-6Ia




4

2



















AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604




























3






ProceduralJlistory










amp 60a-6Ia




4

2



















AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604










ProceduralJlistory










amp 60a-6Ia




4

2



















AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604























AR at 384a





5

5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604





5















6























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604



























7
























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604




























8





















ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604

























ARGUMENT



9



















regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604























regulations




10





















by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604

























by Section 1417

11
























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604




























12























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604



























13

6






















14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604


























14

7
















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604




















15

8






16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604










16


















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604






















17



















18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604























18










(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604














(Section 312a6)






19













AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604

















AR at 381a-382a






20

II























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604



























21









included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604













included 12




rules 13






22
























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604




























23












recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604
















recovery












24
























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604




























25























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604



























mining activities

26













27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604

















27

CONCLUSION









28






Wheeling WV 26003 (304) 230-1604





CONCLUSION









28






Wheeling WV 26003 (304) 230-1604










Wheeling WV 26003 (304) 230-1604





Documents

]n tbe QCourt of of West )3irginia · 2017-05-24 · ]n tbe ~uprenle . QCourt of ~ppea(g . of West )3irginia . No. 16-0827 (Marshall County Circuit Court Civil Action No. 09-CAP-1