Aug 8, 2013 6 min read

WAYNESBURG – Arguments were held Thursday on Emerald Coal Resources’ request for a preliminary injunction, seeking to force the Texas Eastern Transmission Corp. to protect its pipelines above an area Emerald Mine plans to mine early next year.

Emerald claims its deeds give it the legal right to mine coal in the “D” District, north of Waynesburg, without interference or liability in regard to the pipelines, but that Texas Eastern has refused to commit to completing the mitigation work needed to protect the lines in time for mining to begin there in the first quarter of 2014.

Delays in mining the “D” District jeopardize the viability of the mine and could lead to the mine being idled, resulting in employee layoffs, schedule reductions and strained relations with employees, vendors and customers, Emerald claims.

Texas Eastern has maintained it intends to complete the work, but because of Emerald’s failure to confirm the date on which it planned to begin mining the “D” District, won’t be able to complete mitigation until September 2014.

The pipeline company also disputes Emerald’s property rights, claiming it owns the “right to support” beneath its pipelines.

“All we’ve been asking for here is for Texas Eastern to do what they said they would do anyway,” said Thomas Connor, attorney for Emerald. “… All that is at issue is when will they do it.”

Connor referred to testimony presented at a hearing last week at which Emerald officials testified on the consequences of not being able to mine the “D” District the first quarter of 2014, which included the possible idling of the mine.

He called attention to the videotaped testimony of Thomas Wooden, vice president of operations for Texas Eastern. Wooden testified regarding a letter he received from Emerald in January 2011 about Emerald’s plan to mine the “D” District in the second quarter of 2014, and a subsequent letter in which Wooden acknowledged he understood the mine schedule could change.

Wooden testified Texas Eastern intended to mitigate the pipelines and would do so with or without reimbursement for the costs from Emerald, Connor said.

Market conditions and other factors at the end of 2012 resulted in a change in the mine plan and Emerald informed Texas Eastern the best estimate when mining would begin in the “D” District would be May 2015.

Connor cited Wooden’s response, which was in a letter to Emerald in November 2012, informing that the design plans for the mitigation work were completed but notifying the company that because mining wouldn’t begin until May 2015, further work on the mitigation design had been halted.

The letter also indicated Texas Eastern was prepared to proceed with the project for the 2015 start if Emerald agreed to pay for the mitigation work, estimated at more than $21 million. This contradicted Wooden’s testimonythat work would begin with or without an agreement of reimbursement, Connor said.

Texas Eastern was informed in December 2012 that Emerald had changed its plan and would begin mining the “D” District the first quarter of 2014.

Wooden testified, however, that nothing was done to begin the design process again and based on the advice of legal counsel, not the mitigation design team, he informed Emerald the work could not be completed until September 2014, Connor said.

Connor also cited testimony by two of Emerald’s experts witnesses on pipeline construction and subsidence who prepared a report indicating the plan to mitigate the lines propose by Texas Eastern went beyond what was needed.

Engineer Robert Kenney and Dr. Alfred Pettinger proposed a plan calling for removing the earth around the four pipelines and placing the lines on supports in the trenches. Texas Eastern’s plan included removing the lines from the trenches as well replacing the pipe.

Kenney estimated the costs of Emerald’s plan at between $4 million and $6 million. He also said the work could be completed before Nov. 1.

Connor also noted the plan proposed by Emerald’s two experts involved using a method recognized in Texas Eastern’s own standard operating procedures.

David Overstreet, attorney for Texas Eastern, argued Emerald was asking the court to force the pipeline company to complete mitigation measures under a plan prepared by Emerald’s two witnesses, which was rejected by Texas Eastern’s experts.

Texas Eastern’s witness, Lawrence Smore, the project leader on developing the company’s mitigation plan, had testified Texas Eastern’s plan was the most feasible and safe way to complete the work and followed a methodology of experts in that field, Overstreet said.

Overstreet maintained, however, the court lacked jurisdiction to provide the relief requested by Emerald. Only the Federal Energy Regulatory Commission has jurisdiction over the design, operation and maintenance of interstate natural gas pipelines and only FERC could order the company to complete the mitigation measures, Overstreet argued, citing federal case law.

He also spoke of the uncertainty regarding Emerald’s mining plan and its failure to provide Texas Eastern with a definite date on when it intended to begin mining the “D” District. Texas Eastern asked Emerald three times to tell it in writing when work in the “D” District would begin and each time it was given a different date, he said.

Emerald was aware the pipeline company would need a long lead time to prepare and implement its mitigation plan and Emerald’s letter asking Texas Eastern to halt work on the mitigation plan because of the change to a May 2015 start could be considered a “self-inflicted injury,” he said.

Overstreet disputed Emerald’s claim it would suffer irreparable harm by delaying its start of mining in the “D” District by six months. Emerald witnesses agreed the company could continue to meet its commitments for coal and remain profitable, he said

Emerald’s witnesses only “speculated” on potential impacts the delay would have on the mine, its employees and mine suppliers, evidence not sufficient to meet the requirement of irreparable harm needed for an injunction, he said.

Overstreet further argued Texas Eastern is not the cause of the alleged injury Emerald wants the court to address. The problem stems from the state Department of Environmental Protection’s stipulation in the Emerald mining permit that Emerald have an agreement with the pipeline company to mitigate damage to the lines before mining begins, he said.

Judge William Nalitz, who is hearing the case, did not say when a ruling on the injunction will be issued. Arguments also was held Wednesday on Emerald’s motion for partial summary judgment on the issue of the ownership of the coal and support rights.