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Abstracts of Papers Presented at Mining Lawyers Conferences 1995-2001

I. LEGAL ETHICS

Liaison Between Counsel Contesting a Federal Agency and the Agency’s Employees. John Kirkham (Stoel, Rives, Boley, Jones & Grey) 1995.

Drawing upon Utah State Bar Rules and U.S. Justice Department Guidelines, this paper outlines those situations where contact by private counsel with agency employees is protected by the Constitution and the ethics rules.

Ethical Considerations in Defending Your Client’s Contract Miner in a Workplace Accident Case. Forrest H. Roles (Heenan, Althen & Roles) 1997.

This paper discusses potential problems with counsel representing both the owner of a mine property and an independent contract mining company working under contract with the owner (i.e., a "contract miner") in a workplace accident case. The potential problems are exacerbated by recent MSHA decisions and policy which hold property owners responsible for contract miner violations in some cases, thus opening the owner up to new regulatory liability, workers’ compensation liability and civil liability. The paper discusses when common representation of both parties may be proper, the need for informed consent to multiple representation, disclosure of possible future conflicts, prospective waivers of future objections on the basis of conflicts of interest and how to proceed if a potential conflict becomes an actual conflict.

Government Investigations and Ex Parte Communications with Employees. John S. Kirkham (Stoel Rives) 1998.

This paper provides a chronology of events that have occurred respecting the attempt by the Department of Justice (DOJ) to exempt Federal attorneys from state versions of the American Bar Association’s (ABA) Model Rule 4.2 (prohibiting communications with a party that the attorney knows is represented by another lawyer without the other lawyer’s consent). The paper describes the ABA rule and its purpose, and then explains the DOJ’s activities respecting the ABA rule. Next, it outlines responses to the DOJ activities, including those of the ABA, state bar associations, and the courts. Finally, the paper analyzes the likely future of the ABA rule.

Ethics, Privilege, and Confidentiality Considerations When Using E-Mail and Internet. Joseph J. Zaluski ( Wyatt, Tarrant & Combs) 1998.

This paper examines the attorney-client privilege and how the courts are likely to approach the issue of waiver when attorneys are communicating on the Internet or with e-mail. Next, it discusses privilege and confidentiality issues and the ethics of on-line legal advice, and addresses on-line advertising and solicitation issues. Finally, the paper provides practical advice about how attorneys can minimize the risks brought on by these technological advances.

Some Ethical Considerations Involved in the Representation of Companies and Individuals in Agency Investigations An Outside Counsel’s Perspective. R. Henry Moore (Buchanan Ingersoll) 1999.

Using the Federal Mine Safety and Health Act as a template, the paper discusses the ethical considerations that arise when an enforcement scheme contemplates both civil and criminal sanctions for regulatory violations and imposes liabilities on both corporate entities and their agents. Addresses such issues as the ethical implications when outside counsel is asked to represent both the corporate entity and its agents.

Communication With a Government Agency Represented by Counsel: Where Does the Ethical Boundary Fall? Laura E. Beverage (Jackson & Kelly) 2000.

Drawing upon Model Rule 4.2 of the Model Rules of Professional Conduct, recent interpretations issued in the state of Colorado, and the Restatement (Third) of Law Governing Lawyers, the paper presents those ethical issues that arise when a lawyer representing a private party seeks to contact a government agency directly on the subject matter of litigation knowing that the agency is represented by counsel. The paper presents a number of hypothetical examples and offers common sense guidance on how to resolve the ethical issues that arise.

Disclosure of Client Confidences, Sexual Relations with Clients, Written Fee Agreements and Conflict Waivers, and Non-Consensual Screening to Avoid Imputed Disqualification: The Report of the ABA's Ethics Commission.
George W. Miller (Hogan & Hartson, LLP) 2001.

A comprehensive review of the more controversial proposed changes to the Model Rules of Professional Conduct prepared by the ABA's Ethics 2000 Commission together with a summary of the actions taken with respect to the recommendations by the ABA's House of Delegates during their August meeting.

II. ENVIRONMENTAL LAW

A. General Interest

Protection of Self Environmental Audits Under EPA’s Interim Policy and Expanded State Self Audit Privilege Statutes. William B. Prince (Ballard, Spahr, Andrew & Ingersoll) 1995.

An exploration of EPA’s 1995 Interim Policy on self-auditing in the context of traditional privilege and immunity concepts and in contrast to emerging state statutes providing for privileges and limited immunities relating to violative conditions discovered through self environmental audits.

Risk Assessment and Risk Management: "Where It Has Been and Where It May Be Going. Anthony J.Thompson (Shaw, Pittman, Potts, & Trowbridge) 1996.

An overview of the development of the science of risk assessment, or determining adverse health effects, and risk management, or determining what action to take when a risk is identified. Surveys EPA policy and various regulatory reform proposals in Congress.

Establishing Domestic Policy Through International Agreements. Donald H.Pearlman (Patton Boggs) 1996.

A summary of the events and issues leading up to the Rio Treaty on global climate change.

NEPA and Mine Development: Legal and Practical Considerations. Robert W. Micsak (Independence Mining Company) 1996.

An overview of the National Environmental Policy Act and its requirements for environmental impact statements as precedents to the issuance of permits in some cases. These general principles are then applied to specific cases involving the application and the granting of mining permits.

Is Mining In Colorado’s Future After Summitville? Stuart A. Sanderson (Colorado Mining Association) 1996.

A summary of the events leading to the Summitville environmental debacle, the lessons learned, and their implications for future mining projects in Colorado.

Toxic Release Inventory -- A New Way to Regulate and a New Requirement for Mining.. Steven G. Barringer (Singer, Brown & Barringer).1997.

This paper provides an overview of the annual Toxics Release Inventory (TRI) reporting requirements imposed under Section 313 of the Emergency Planning Community Right to Know Act (EPCRA) and, to a lesser extent, the Pollution Prevention Act of 1990. It reviews the reporting regulations and exemptions, provisions for enforcement both by the Environmental Protection Agency (EPA) and citizen suit, and EPA’s efforts to expand the TRI program. Particular attention is given to EPA’s adding, in May 1997, coal preparation and mining extraction and beneficiation facilities to the industries subject to the TRI.

Natural Resource Damages. James R. Bieke and William R. Galeota (Shea & Gardner) 1998.

This paper provides an overview, in outline form, of natural resource damage claims under the Comprehensive Environmental Response, Compensation and Liability Act. First, it examines statutory provisions and the history of regulations relating to natural resource damages. Next, in great detail, it reviews the structure of natural resource assessment under Department of the Interior regulations. Lastly, the paper highlights key issues relating to injury determination, restoration/replacement, compensable value and court proceedings.

The Uncertain Effects of Environmental Justice on the Mining Industry., Michael S. Giannotto (Shea & Gardner) 1999.

Provides an overview on environmental justice concepts grounded in Title VI of the Civil Rights Act and the National Environmental Policy Act whereby civil rights advocates argue that minority and low income communities should not bear a disproportionate share of the adverse impacts of industrial development and its environmental consequences. Specifically focuses on EPA guidance in this area and offers advice on how mining companies can avoid environmental objections to planned or existing facilities.

Sleeping with the Enemy: Do Settlements With State Agencies Have a Preclusive Effect Upon Federal Civil Enforcement and Citizen Suits Under Environmental Statutes? Lisa A. Kirschner (Parsons, Behle & Latimer) 2000.

Over 750 environmental programs are now administered by the states through state implementation programs for federal environmental statues. When a business is charged by the state with a violation of an environmental standard and effects to settle the matter, is there a degree of finality to that process? This paper warns that, notwithstanding a settlement with a state agency, a business might still be liable for a violation if EPA "overfiles" its own action independent of state enforcement or if a citizens group sues under various citizen suit provisions in federal laws. The paper also suggests means of dealing with such supplementary actions.

Regulation by Policy StatementThe Implications of the Appalachian Power Decision for Federal Regulatory Programs.
Lauren E. Freeman (Hunton & Williams) 2001.

Explores the potential effects of the D.C. Circuit's opinion that EPA's guidance document requiring state and local agencies to conduct "periodic monitoring" of permitted stationary sources was invalid because the document was not made subject to public notice and comment. Despite early hopes that Appalachian Power might be relied upon to challenge other agencies' guidance or policy documents the paper argues that agencies will still be free to issue such documents provided they are consistent with the statutes or duly-promulgated standards that they implement.

TRI Reporting after NMA v. Browner. Peter V. O'Connor (AngloGold NA, Inc.) 2001.

A comprehensive discussion of the U. S. District Court decision holding that EPA's Toxic Release Inventory program definition of "processing" does not apply to the extraction or beneficiation of naturally-occurring, undisturbed ores. The paper recommends an approach by which EPA and the mining industry can resolve issues as to what substances are reportable so that a uniform and rational TRI program for mining can be established.

B. Clean Air

Recent Developments in Title V Permitting: EPA Continues to Move the Targets. Ronald R. Janke (Jones, Day, Reavis & Pogue) 1996.

Overview of the Clean Air Act 1990 Amendments which provide for the issuance of a permit that covers emission limits and monitoring and reporting requirements for stationary emission sources.

Clean Air Act Regulation and Litigation: An Update. Eugene M. Trisko (Attorney At Law) 1999.

Summarizes the issues raised in American Trucking Assn. v. EPA, (EPA’s air rules on ozone and particulate matter) and Michigan v. EPA (EPA’s State Implementation Plan (SIP) call) along with EPA’s regulatory responses. Also addresses potential regulatory fronts such as reduced mercury standards from smokestacks.

C. Clean Water

EPA’s Stormwater Permit Program: An Illusion for the Mining Industry. Douglas E. McAllister (ASARCO) 1995.

A critical overview of EPA’s stormwater permit program for the metal mining industry adopted pursuant to the 1987 amendments to the Clean Water Act.

Neutralizing the Acid Rock Drainage Problem. Richard E. Schwartz (Crowell & Moring) 1996.

Defines acid rock drainage and then surveys various regulatory initiatives to deal with the problem as developed by EPA, BLM, OSM and the states. Provides an overview of court cases on the issue.

SMCRA and the Clean Water Act. Dean Hunt (Buchanan Ingersoll) 1997.

This paper explores the interrelationship between the regulatory programs established under SMCRA and the Clean Water Act. The paper explains how Congress intended that the CWA remain the primary means for water pollution control and how SMCRA is only intended to regulate aspects of water pollution control not covered by the CWA. Detailed are the CWA requirements that apply to coal mining and the SMCRA provisions used to regulate water pollution.

Total Maximum Daily Loads. Robert McLusky ( Jackson & Kelly) 1998.

This paper focuses on the TMDL program under the Clean Water Act and explains the 5-step process that states must undertake to identify impaired waters and develop corresponding TMDLs under the oversight of EPA. Also discussed are new developments in the TMDL program and the status of litigation surrounding the program.

TMDL and the NPDES Permit Managing the Process of Change. Robert D. Comer (Snell & Wilmer) 2000.

In July of 2000, EPA promulgated final rules implementing the TMDL (total maximum daily load) provisions of the Clean Water Act, i.e., the setting of maximum limits of pollutants a waterbody may receive while still meeting water quality standards. This paper reviews the statutory basis for the TMDL rule emphasizing the relationship to water quality standard setting and the National Pollutant Discharge System (NPDS) permitting process. The paper proceeds to recommend approaches for protecting existing NPDS discharge limits.

The Ebb and Flow of Clean Water Act Jurisdiction. Brian R. Hanson (Baird Hanson Quinn, LLP) 2001.

A discussion of the rationale and potential influence of the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Corps of Engineers, wherein the Court held that jurisdiction under the Clean Water Act is dependent upon whether the body of water in question is "navigable" as understood under the statute. The paper argues that the decision constitutes such a departure from prior case law that Congress and the states are bound to respond with new clean water legislation.

D. Waste Management

The Bevill Exclusion and EPA’s Proposed Land Disposal Restrictions. Donald J. Patterson (Beveridge & Diamond) 1996.

A summary of EPA’s actions with regard to mining and mineral processing under the Resource Conservation and Recovery Act (RCRA) with special emphasis on EPA’s intentions to narrow the scope of the Bevill Amendment which exempts some mining and mineral processing activities from RCRA coverage.

Earth to Earth, Ashes to Ashes: Coal Combustion By-products Returned to the Mine Site. Christopher B. Power (Robinson & McElwee) 1997.

The increased use of coal in the generation of electricity has resulted in an increase in the production of coal combustion by-products (CCBs) such as fly ash, bottom ash, boiler slag and fluidized bed combustion wastes. The paper provides a broad survey of various federal and states environmental laws and regulations that may govern the generation, transportation and ultimate disposal of such wastes. The paper suggests that returning these wastes to mine sites for such beneficial uses as reclamation or filling of underground voids is a preferable utilization of CCBs compared to disposal at new landfills or surface impoundments

EPA’s Phase IV LDR Rule: The Good, the Bad and the Ugly. Donald J. Patterson, Jr. (Beveridge & Diamond) 1998.

This paper offers an overview of one of the more complex Land Disposal Restrictions (LDR) rules yet promulgated under the Resource Conservation and Recovery Act (RCRA), one that could adversely affect many industry recycling practices. The author notes final rule provisions less adverse than had been proposed. The paper then examines final rule provisions (e.g., testing and storage requirements) whose effects on industry are likely to be adverse. Finally, the paper reviews areas of uncertainty or contradiction in the rulemaking.

E. Surface Mining

Ownership and Control - The Applicant Violator System After NMA v. DOI. Tim Means (Crowell & Moring) 1997.

This paper discusses the impacts of NMA v. DOI, the D.C. Circuit decision holding that OSM's ownership and control rules conflict with the plain meaning of SMCRA Section 510(c) and also invalidating the agency's related rules for permit information and permit rescission because they were based on the ownership and control rule. The paper also reviews how OSM’s promulgation of interim ownership and control, permit information, and permit rescission rules effectively do what OSM had unsuccessfully petitioned the court to do on rehearing: they substitute a revised set of rules with only the "upstream" portion of the ownership and control rule eliminated. The paper concludes that although NMA v. DOI has led to a dramatic improvement in the ownership and control situation, problems persist as a result of OSM's interim rules.

Mountaintops, Longwalls and Other SMCRA Tales. Kathy Karpan (Director, Office of Surface Mining, U.S. Dept. of Interior) 1999.

An overview of Director Karpan’s philosophy of regulating SMCRA, as well as a summary of major issues confronting OSM and the coal industry, including mountaintop removal, subsidence, and ownership and control regulations.

The Mountaintop Mining Quagmire and Future Implications for the Entire Mining Industry. Robert G. McLusky (Jackson & Kelly) 2000.

A summary of the dispute in West Virginia over mountaintop mining and the use of valley fills, including the ongoing litigation addressing that dispute. The paper also warns that some of the legal issues in the current litigation, if decided adversely to West Virginia coal operators, could have serious implications for permitting and enforcement in other areas of the country.

III. LABOR LAW

A. Discrimination

Hidden Problems Posed by Employment Discrimination Cases. William I. Althen (Smith, Heenan & Althen) 1996.

Summarizes various federal anti-discrimination statutes, their interaction and overlapping characteristics, and proposes methods to avoid running afoul of these statutes.

Mandatory Arbitration of Employment Claims. Charles A. Powell, III (Alabama Coal Association) 1997.

This paper discusses how the dramatic increase in the number of employment discrimination claims over the last twenty years has led some employers to conclude that some of these disputes may be better solved through arbitration. The paper reviews the advantages of arbitration over civil litigation such as shorter hearings, faster decisions and lower costs. Disadvantages discussed include no uniform training procedures for arbitrators, lack of appellate review of an arbitrator’s erroneous or illogical decision and limited discovery. The paper also addresses: 1) the enforceability of mandatory arbitration agreements for employment discrimination claims in both the non-union and union context; 2) how mandatory arbitration works; and 3) ways to avoid potential pitfalls to a successful mandatory arbitration program,. waivers of future objections on the basis of conflicts of interest and how to proceed if a potential conflict becomes an actual conflict.

Investigating and Addressing Discrimination, Hostility and Harassment in Mines and Offices. Anna M. Dailey (Heenan, Althen & Roles) 1998.

This paper clarifies exactly what constitutes sexual harassment and explains the federal definitions of quid pro quo harassment and hostile work environment. Through case law examples, the paper emphasizes the need for companies to adopt a sexual harassment policy to avoid vicarious liability. The paper also provides an in-depth look at the steps a company should take to institute a sexual harassment policy and conduct investigations under the policy.

Developments in Various Discrimination Statutes and Cases. Gerald P. Duff (Hanlon, Duff, Paleudis & Estadt) 2000.

An overview of the current state of discrimination law with emphasis on Title VII of the Civil Rights Law, the Age Discrimination in Employment Act, the Americans With Disabilities Act and the Family and Medical Leave Act. The paper also provides guidance on procedural avenues for resolving such claims.

B. Labor Relations

Labor Law Update. Ronald E. Meisburg (Smith, Heenan & Althen) 1995.

Current survey on labor relations cases and proposed legislation regarding labor organizing, collective bargaining, concerted activities and striker replacement. Also explores developments relating to the Americans With Disabilities Act, the WARN Act, and the Family and Medical Leave Act.

Arbitrator’s Decisions and Public Policy: When Should Courts Second-Guess the Decision Maker? David G. Leitch (Hogan & Hartson) 2000.

Using the Supreme Court case of Eastern Associated Coal v. United Mine Workers of America, this paper outlines the issues associated with enforcement of contracts (binding arbitration in a labor agreement) versus public policy (a drug-free workplace). Eastern is challenging an arbitrator’s decision ordering reinstatement of a coal truck driver who twice tested positive for drug use. The paper presents the arguments in favor of giving preference to the public policy of fostering public safety over the traditional independence of arbitrators in exercising their decisional discretion.

C. Safety and Health

Operator and Owner Status and Liability Under the Mine Safety Act: Background, Issues and Limits. James A. Lastowka (McDermott, Will & Emery) 1997.

The issues of who can be held liable for occupational safety and health violations committed by independent contractors utilized by mine owners and operators has generated much litigation over the past 30 years. This paper provides background on the controversy and distinguishes the issues that arise depending upon whether the independent contractor is performing services or construction at the mine or whether the contractor is hired to operate the mine as a production contractor. The paper goes on to explain a current controversy involving the liability of passive owners, lessors and lessees for violations committed by independent production contractors.

The Use of Single-Shift Samples to Enforce Health Standards. Henry Chajet & David Farber (Patton Boggs) 1997.

This paper reviews the continued use of single-shift samples by federal agencies to enforce health standards despite government findings that single shift measurements of respirable dust do not accurately represent the atmospheric conditions to which the miner is continuously exposed. Specifically, the paper discusses how single samples are used by enforcement agencies such as MSHA, OSHA, and EPA and then focuses on some legal and technical considerations raised by MSHA’s single sample enforcement program. Finally, the paper concludes with some startling empirical evidence acquired from MSHA in a recent trial demonstrating the government’s inability to reach accurate and reliable single sample compliance determinations.

The Year in Review: 1998 MSHA and FMSHRC Update. L. Joseph Ferrara (Jackson & Kelly) 1998.

This paper summarizes major regulatory initiatives undertaken by the Mine Safety and Health Administration, in particular, activities relating to respirable coal dust, diesel emissions, noise and surface haulage. It also provides an overview of the "significant and substantial" controversy with respect to MSHA’s since abandoned intention to seek to overturn the National Gypsum definition of "S&S" as well as key litigation on that issue before the Review Commission, e.g., Hobet Mining, Inc. With respect to its survey of major cases decided in 1998, special emphasis is placed on the Abnormal White Center ("dust tampering") case in which the industry prevailed in the D.C. Circuit and the 11th Circuit Court of Appeals’ decision vacating MSHA’s attempts to determine compliance with the respirable dust standard on the basis of a single-shift sample. A summary of legislative oversight regarding MSHA enforcement is also provided.

Deference in the Administrative Review of Agency Action: A Case Study of Deference to the Secretary of Labor by the Mine Safety and Health Review Commission. W. Christian Schuman (Office of the Solicitor, U.S. Department of Labor), James A. Lastowka and Arthur G. Sapper (McDermott, Will & Emery), and Theodore F. Verheggen (Commissioner, Federal Mine Safety and Health Review Commission) 1999.

Under the Federal Mine Safety and Health Act of 1977, the Secretary of Labor has the authority to promulgate and enforce mandatory safety and health standards while the Federal Mine Safety and Health Review Commission, a wholly independent review body, has the authority to hear and decide cases arising under the Act. (Review of Commission decisions is had in the U.S. Circuit Courts of Appeals.) Since passage of the Act, there has been some dispute as to the degree of deference the Commission owes to the Secretary’s interpretation of the Act and of the Secretary’s own mandatory standards. For example, does the Commission owe so-called "Chevron" deference to the Secretary’s interpretation of the Act and the standards, i.e., must the Commission defer to the Secretary’s interpretation if it is reasonable even if the mine operator or the Commission itself arrives at a different but no less reasonable interpretation? Messrs. Schuman, Lastowka, and Verheggen provide three distinct perspectives on this fundamental legal issue that pervades much of the Review Commission’s jurisprudence

MSHA’s Health Initiatives: A Sea Change in Regulatory Emphasis. Elizabeth S. Chamberlin (CONSOL, Inc.) 2000.

In recent years the Mine Safety and Health Administration (MSHA) has instituted an aggressive rulemaking program addressing workplace health in the mining industry. This paper summarizes the elements of MSHA’s recently promulgated noise standard as well as the agency’s proposed standards for controlling respirable coal mine dust and diesel particulate matter.

Stopping the End Run: Challenging Standard Setting Organizations That Are Used to Support or Bypass Rulemaking. Henry Chajet (Patton Boggs) 2000.

Federal governmental agencies such as MSHA and OSHA increasingly rely on health and safety standards promulgated by voluntary non-governmental organizations such as the American Conference of Governmental Industrial Hygienists (ACGIH). Those organizations, however, do not adhere to the rulemaking provisions of the MSHA and OSHA statutes. This paper examines the government’s practice of relying on voluntary consensus standards (often arrived at by committees composed of government employees) and outlines potential causes of action that might be taken to ensure that such standard-setting becomes accountable to those ultimately subject to those standards.

Product Liability Cases: Following the Fickle Finger of Fault Among General Contractors, Independent Contractors, Landowners, etc. Pamela Lambert-Joyce and Stephen New (Lambert & New) 2001.

Using a hypothetical involving a fatality caused by the malfunction of a piece of large mining equipment, the paper explores the various theories of liability and potential defenses as among the mine owner, an independent contractor, and the manufacturer and vendor of the equipment.

D. Employee Benefits

Interaction of ADA, FMLA and Workers’ Compensation Law. George J. Oliver (Smith Helms, Mullis & Moore) 1996.

Summarizes the Americans With Disabilities Act, and the Family and Medical Leave Act, and demonstrates their effect on, and tension with, state workers’ compensation principles.

Rightsizing: How Employers Do It and Avoid Liability. C. David Morrison (Steptoe & Johnson) 1998.

This paper explores the many factors involved in "rightsizing" operations, by decreasing the workforce as efficiently as possible while minimizing liability. Reduction-in-force related benefits, as well as the requirements employers must meet to be in compliance with ERISA, are reviewed in great detail. The paper also warns that a legal risk analysis should be performed before a reduction-in-force to ensure that errors do not occur and liability is avoided.

He’s Not My Employee Is He? The Labor, Employment, and Employee Benefit Risks of Using Temporary, Contract or Leased Employees. David J. Laurent (Babst, Calland, Clements & Zomnir) 1999.

With the increasing utilization of temporary, contract or leased employees, questions arise as to what benefit obligations arise for those employees. Courts and administrative agencies are increasingly treating such employees as regular employees. The paper summarizes the potential risks in such cases and offers guidance for dealing with those risks.

Recent Developments Under the Coal Industry Retiree Benefit Act of 1992. David J. Laurent ( Polito & Smock) 1998.

The paper provides an extensive survey of cases addressing key terms in the 1992 Act and how they should be applied to former signatories to the National Bituminous Coal Wage Agreement, their successors, and so-called "related persons". Special attention is given to the Supreme Court’s recent decision holding that the 1992 Act is unconstitutional as applied to a former signatory that did not sign the 1974 agreement or subsequent agreements (Eastern Enterprises v. Apfel, 118 S. Ct. 2131 (1998). The survey also summarizes cases addressing eligibility for benefits, the effect of bankruptcy proceedings on liability, and procedures for reviewing the Social Security Administration’s assignment of beneficiaries to covered operators.

Update on ERISA Issues Affecting Pensions, Retirement, and Health Care.
Ronald E. Meisburg, Allison S. Williams, and Mark E. Heath (Heenan, Althen & Roles) 2001.

A broad survey of issues arising under the Employee Retirement Income Security Act of 1974, including a summary of key court cases and regulatory changes. Particular emphasis is placed on the interaction between ERISA and the Coal Industry Retiree Health Benefit Act of 1992.

IV. BUSINESS PRACTICE AREAS

A. General Interest

Company’s Antitrust Implications in a Trade Association. Vaughn R.Groves (Pittston Coal Management Company) 1996.

The "concerted action" engaged in by members of a trade association must be scrutinized to assure that such action does not call into play the antitrust laws of the U.S. or the individual states.

Officer/Director Liability in Criminal Investigations. William J. Powell ( Jackson & Kelly) 1997.

The paper provides a brief history and current status of the law as it relates to corporate officers and directors in the criminal area. First, the paper discusses the legal theory of "corporate liability," and the difference between criminal accountability for the corporation (which primarily consists of paying fines) and criminal liability for officers and/or directors. Next, it explains the "Responsible Corporate Officer Doctrine" and its importance in criminal prosecutions relating to the intent/knowledge element of corporate criminal conduct, including how "non-acting" officers’ criminal knowledge may be proven. Finally, suggestions are offered to minimize the likelihood that criminal intent/knowledge may be imputed to officers who did not intentionally act to violate the law.

All You Need to Know. . . For Now: Coal and Mineral Law Update. Timothy R. McCrum (Crowell & Moring) 2000.

A comprehensive overview of case law, rulemaking activity, and legislative initiatives affecting the mining industry. This survey covers environmental, health and safety, and land use issues.

The Year in Review and a Look Ahead. Lawrence G. McBride (Foley and Lardener) 2001.

A comprehensive look at recent court decisions of interest to the mining industry. Topics range from 11th Amendment jurisprudence to surface mining, land use, black lung regulations, historic preservation, and reclamation standards for hardrock mines.

After Midnight: Giving Midnight Regulations a Second Look. Harold P. Quinn et al. (National Mining Association) 2001.

An overview of the surge of last minute regulations of the departing Clinton Administration and the Bush Administration's response. The paper explores in detail the constraints placed upon incoming administrations seeking to review, modify, or revoke regulatory initiatives undertaken by their predecessors and refers to past and potential judicial and congressional responses to the "midnight regulation" phenomenon.

B. Mergers and Acquisitions

Bankruptcy Considerations in the Mining Industry. Ethan D. Fogel (Dechert, Price & Rhoads) 1995.

A survey of issues arising for lessors, creditors and others contemplating the acquisition of a bankrupt company in a bankruptcy proceeding. Emphasis on disposition of minerals leases, labor and benefits obligations, and environmental claims.

Recent Developments in Mergers and Acquisitions. T. Justin Moore III (Hunton & Williams) 1995.

Addresses duties and responsibilities of the board of directors in connection with the sale or merger of a business.

Due Diligence for Mineral Property Acquisition: A Technical Primer. Daniel J. Cornette and Lee A. Miller (John T. Boyd Company) 1998.

The paper gives a broad overview in outline form, of the due diligence process, as applied to the minerals and coal industries. The paper defines due diligence as an "appropriate level of study by knowledgeable professionals to identify and assess significant factors affecting the future operation of the subject mining property. The paper is designed to give to the reader an initial insight regarding due diligence procedures, including addressing such issues as: (1) reserve base validation; (2) review of existing operation performance; (3) future risk assessment; (4) market issues; and (5) company and property valuation.

C. Finance and Loss Control

Practical Decisions Relating to Criminal Investigations. William Powell (Jackson & Kelly) 1995.

Addresses issues arising from criminal investigations of safety, health & environmental violations, including investigation interviews, search warrants, subpoenas, grand jury testimony, and settlement negotiations.

Enterprise Liability — Contract Mining Claims. Steven P. McGowan (Steptoe & Johnson) 1995.

Potential liability for entities that contract out the extraction of minerals under various state theories and in light of federal enforcement policies relating to environmental and occupational safety and health statutes.

Insurance Coverage Considerations for Mining Concerns and Other Policyholders. William G. Passannante and Joshua Gold (Anderson, Kill & Olick) 1996.

Offers advice in negotiating insurance contracts to maximize coverage for both sudden and incremental losses. Also provides guidance on evaluating existing coverage.

Maximizing the Benefits of Environmental Insurance Coverage for Mining Concerns. William G. Passanante and Joshua Gold (Anderson, Kill & Olick) 1997.

The paper focuses on the need for mining companies to prepare for major losses and subsequent interactions with insurance companies. Corporations are exposed to a major disaster about once every thirty years whereas major insurance companies handle claims for disasters every day. Therefore, when an insurance company denies coverage, it is much more prepared for the ensuing coverage battle. The paper provides information not only on how to prepare in advance of disasters to limit the scope of losses and on the rules of insurance coverage but also on insurance coverage issues specifically arising from wrongful extraction claims and environmental claims.

Mine Project Financing. William B. Prince ( Dorsey & Whitney) 1998.

The paper analyzes the advantages and disadvantages of the various types of debt financing and equity financing traditionally used for mining projects. New developments are also addressed such as: (1) the use of limited liability companies; and (2) the new mining standards for Canadian security markets. The paper also focuses on: (1) new creative funding mechanisms, such as convertible debentures and junk bonds; (2) the effect of environmental impacts on debt and equity financing; (3) and the development of a worldwide standard for estimating and classifying resources.

D. Litigation Practice

When Does It Make Sense (Cents) to Use Outside Counsel? Jeffrey Klinger (Peabody Holding Company) 1997.

This paper outlines factors that should be considered when deciding whether to hire outside counsel, such as budgetary constraints, in-house workload, deadlines and the need for expertise. The paper also provides advice for selecting the right outside counsel and discusses a variety of billing approaches that should be explored.

The Other Sheriff in Town - Qui Tam Actions Under the False Claims Act. John Macleod and Andy Liu (Crowell & Moring) 1998.

Through the vehicle of a recent qui tam lawsuit brought against a number of mining companies, this paper examines the origin of qui tam actions under the federal False Claims Act and amendments to that statute. The paper sets out the key provisions and elements of proof for qui tam actions, noting how "bounty hunter" provisions make qui tam attractive to would be "private attorneys general". After noting how financial and ideological (e.g., environmental) motivations can combine in recent qui tam suits, the authors offer some suggestions for minimizing a company’s exposure to qui tam suits.

Friend or Foe of the Court: Amicus Practice and Strategy. John G. Roberts, Jr.(Hogan & Hartson) 1999.

The flood of increasingly partisan amicus curiae briefs in recent high profile appellate cases raises the question of whether the briefs are read at all, let alone whether they influence the eventual outcome of a case. This paper presents several pointers on how to decide whether to file a brief and, if so, how to have it accepted and to make it more effective.

Monetizing Your Litigation Investment: A Primer on Attorney Fee Statutes. Timothy W. Gresham (Penn, Stuart & Eskridge) 2000.

A survey of various fee shifting provisions in federal statutes with particular emphasis on the Equal Access to Justice Act and attorney fee provisions of the Federal Rules of Civil Procedure.

Title FailureWhat to Do When What's Mine Turns Out to Be Yours. Sean Cassidy (Cassidy, Kotjarapoglus & Pohland,LLC) 2001

Title failure inevitably results in litigation. This paper outlines bases for determining the rights, duties, and liabilities of competing claimants to title and then sets forth the means by which a court must determine the proper measure of damages given the circumstances presented, including equitable considerations.

E. Energy Markets and Deregulation

Deregulation of the Electric Industry. Bradley C. Lewis (John T. Boyd) 1995.

Overview of the issue with special emphasis on the impact of deregulation on high-cost coal contracts.

Electricity Deregulation Regulatory and Congressional Developments. Sherry Quirk (Verner, Liipfert, Bernhard, McPherson & Hand) 1996.

An overview of approaches taken or being considered at the federal and state levels by both legislative and executive branches of government.

Coal Contracting Strategies Under Deregulation. Mark T. Morey ( The Fieldston Company) 1997.

The paper discusses strategies for negotiating contracts under electric utility deregulation. The paper reviews current methods for determining contract terms and recommends that the structure of future agreements should be designed to maximize dispatch of the unit and profits to all parties. The paper also discusses how this new generation of contracts will have to more closely follow the needs of a competitive marketplace and the concept of "partnering" and development of strategic alliances.

Deregulation as a Force Majeure or Gross Inequity Under Coal Sales Contracts. Patricia Britton (Kennecott Energy Company) 1998.

The paper attempts to identify concepts in existing commercial case law which utilities, pressured by utility deregulation and open access, may use to modify or terminate coal contracts. Theories and commercial impracticability are analyzed in particular, in light of cases which grew out of the deregulation of the natural gas market, as well as certain cases involving above-market coal contracts. The paper recommends that coal companies and their customers work together to try to form creative solutions to address issues as they develop.

Power Marketing Stud Poker: The Royalty Joker. Brian E. McGee (Jackson Kelly) 1999.

Electric power is becoming the most volatile commodity in the U.S. due to a shortage of generating capacity and an increasing demand for power. Peak and off-peak demands, greater use of futures markets, and wholesale auctions of electricity, etc.require changes in traditional ways of pricing and marketing coal. That in turn results in revisions of the ways coal is valued for ad valorem royalty purposes. This paper summarizes the market changes and offers strategies for dealing with them.

Contracts for the New Coal Markets. Wayne E. Gresham (Environ North America) 2000.

Deregulation of the electricity generating industry has forced coal producers and users to rethink their approach to coal supply contracts. This paper describes new efforts to create a master coal purchase and sale contract that can facilitate negotiations, allow multiple trades, and provide a quick response to market changes. The paper also summarizes developments in on-line trading.

F. International Issues

International Mineral Operations. Daniel K. Sloane (McGuire, Woods, Battle & Boothe) 1995

Using Kazakstan as a model, the paper outlines a contractual approach to exploration and development of mineral resources between international mining companies and host governments.

Alternative Dispute Resolution in a Global Village. William K.Slate, III (American Arbitration Association) 1996.

ADR is becoming a more attractive option, both nationally and internationally, as a means of reducing the costs and delays associated with litigation. ADR can also serve to overcome and reconcile the differences that arise between legal systems in different countries.

Choosing an Investment Vehicle for Your Domestic or International Mining Venture.
Stephan J. Hull and Guillermo J. Ferrero (Parsons Behle & Latimer) 2001

A comprehensive primer on the legal ramifications of investing in or operating mines in foreign countries. The paper focuses primarily on the differences encountered by domestic companies between common law principles governing operations in the U.S. with the civil law systems governing operations in Latin American countries and offers guidance for navigating foreign legal waters.

V. LAND ISSUES

A. General Interest

The Antiquities Act: Grand Staircase-Escalante National Monument. John S. Kirkham & David J. Jordan (Stoel Rives) 1997.

This paper discusses the creation of the Grand Staircase-Escalante National Monument and some of the litigation filed challenging the designation of the monument. The designation reserves and withdraws 1.7 million acres of public lands located in Utah, containing more than 62 billion tons of coal. More than 176,000 acres of land covered by the monument (containing vast marketable natural resources) are school trust lands owned by the State of Utah and held for the benefit of Utah’s public schools. The paper discusses the suit filed by the Utah School & Institutional Trust Lands Administration, challenging the designation of the monument on the grounds that it: (1) exceeds the President’s authority under the Constitution; (2) exceeds the President’s delegated authority under the Antiquities Act of 1906; (3) violates the Federal Land Policy and Management Act and the National Environmental Policy Act; and (4) violates the Utah Enabling Act.

The Abandoned Mine Land Initiative: Regulatory Impediments and Policy Options. Scott A. Crozier (Phelps Dodge Corp.) 1997.

The paper reviews the purpose and content of the Abandoned Mine Land Initiative (AMLI), the first cooperative effort between industry and government to address the abandoned mine land (AML) problem. The paper identifies some of the more significant impediments to addressing AMLs, and identifies policy options that would encourage voluntary, cooperative cleanup of AMLs. The basic premise of the paper is that "voluntary" as opposed to "coerced" (i.e., mandated under law) cleanup of AMLs is in the best interest of industry, government and the public. Voluntary, cooperative cleanup will address AML problems sooner, more thoroughly, and with less expense to industry and government.

How Far is Too Far: An Update on Regulatory Takings. George W. Miller (Hogan & Hartson) 1998.

This paper examines legal issues and principles relating to regulatory takings, offering practical suggestions for the trial and settlement of taking cases. In particular, the paper describes in detail the elements of a regulatory taking claim, how to determine the date of the taking, determining fair market value and guidance on case management.

Direct Democracy: Anti-Mining Initiatives. Rebecca Watson (Gough, Shanahan, Johnson & Waterman) 1999.

This paper traces the development of the ballot initiative from Europe to the United States, and within the U.S. in the last century. The paper pays particular attention to the use of initiatives in recent years to attack mining, using specific examples from South Dakota, Oregon and Montana, offering analyses of how and why these initiatives succeeded or failed. The paper concludes with a "Top Ten List of Lessons Learned" from anti-mining ballot initiatives.

An Update on Historic Preservation. Lynne Sebastian (Statistical Research, Inc.) 2000.

The National Historic Preservation Act requires federal agencies to accommodate the preservation of historic, prehistoric and traditional cultural heritage when administering the various federal programs. The Act is administered by the Advisory Council on Historic Preservation which recently issued revised rules implementing the Act. These rules were challenged by NMA. The paper summarizes the history of the Act and the challenged rules while also identifying and discussing those issues raised in the NMA challenge.

B. Coal Leasing

Sex, Death and the MMS. Brian E. McGee (Parcel, Mauro, Hultin & Spaanstra) 1996.

An overview of the Minerals Management Service’s policies and procedures for coal valuation as well as a critique of some of the directions MMS is taking on matters of policy.

Maximum Economic Recovery and Related Federal Release Conditions: New Twists on Production Obligations. Lawrence McBride (Freedmn, Levy, Kroll & Simonds) 1998.

This paper describes the background of statutory and regulatory production and operation obligations for Federal coal leases, and then focuses on the problems with the Bureau of Land Management’s (BLM) "royalty as damages initiative," in which BLM is attempting to collect royalties from lessees for coal that has never been mined. BLM’s methodology in implementing this program is explained, as is the reaction to the agency’s actions by the courts and the Interior Board of Land Appeals. It concludes with suggestions on how lessees can minimize their exposure under BLM’s initiative by various means.

Coalbed Methane Gas and Western Coal Development. Morris W.Kegley (Kennecott Energy Company) 1999.

An overview of the history and extent of coalbed methane production, the competing claims of ownership between coal operators and gas drillers, the conflicts between methane production and coal production, and the legislative and regulatory attempts to resolve the conflicts between methane production and coal production.

C. 1872 Mining Law

Mining Patent Litigation New Mining Law Issues. Ken Hubbard (Dorsey & Whitney) 1996.

An update on cases arising from the Interior Secretary Babbitt’s decision to subject all mineral patent applications to more intense scrutiny, as well as a Congressional moratorium (through the appropriations process) on the processing of patent applications.

Unnecessary or Undue Regulation? Revisions to the Surface Management Program for Hardrock Mining on Public Lands. David P. Kimball, III and David J. Armstrong, (Gallagher & Kennedy) 1997.

The paper provides a brief description of the statutory and regulatory background of the federal surface management regulations contained at 43 CFR 3809, as well as a description of changes to the 3809 regulations proposed by the Bureau of Land Management (BLM) in 1991, by Congress in 1993 and by the Secretary of the Interior and BLM in 1997. The paper also describes the industry response to, and the present status of, the current regulatory reform effort, including an update on the recently finalized 3809 bonding rule.

1997 Mining Law Update. Stephen D. Alfers (Alfers & Carver, LLC.) 1997.

This paper reviews major activity so far this year on the Mining Law. It discusses legislation introduced to amend the mining law, as well as regulatory efforts undertaken that would impact activities conducted under the Mining Law (in particular the bonding regulations and the 3809 review). The paper also provides a detailed description of the more significant litigation relating to the mining law, including case summaries.

Developments Related to the Administration of Mining Claims. Don H. Sherwood ( Parcel Mauro) 1998.

This paper focuses on issues relating to the discovery of mining claims. First, it examines the statutory foundation of discovery. Next, it looks at the definition of discovery and how that definition is currently implemented. Finally, the paper discusses recent cases that reflect a tendency to deal with discovery as a policy matter, with results tailored by conclusions easy to reach in cases on the fringe of bona fide exploration efforts

Administrative Reform of the Mining Law Who Needs Congress? Millsites, Comparative Values and Other Initiatives. Scott W. Hardt (Dorsey & Whitney) 1999.

This paper highlights recent actions taken by the Department of Interior (DOI) in an effort to modify the Mining Law of 1872 administratively in light of the Administration’s lack of success in achieving legislative changes to that statute. Particular attention is given to DOI efforts to restrict or delay patenting, curtail mining industry access to public lands by limiting millsite claims, and impose a comparative values test in place of the traditional economic value test for a mineral discovery.